Nos. 08- 289 & 08- 294 In tbe upreme ourt of tbe Wniteb tate THOMAS C. HORNE , SUPERINTENDENT OF PUBLIC IN- STRUCTION OF THE STATE OF ARIZONA , PETITIONER MIRIAM FLORES ET AL. RESPONDENTS SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVES AND PRESIDENT OF THE ARIZONA SENATE , PETITIONERS MIRIAM FLORES ET AL. RESPONDENTS ON PETITIONS FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE WASHINGTON LEGAL FOUNDATION AS AMICUS CURIAE IN SUPPORT OF PETITIONERS DANIEL J. POPEO RICHARD A. SAMP Washington Legal Foundation 2009 Massachusetts Ave. , NW Washington, DC 20036 (202) 588- 0302 GENE C. SCHAERR Counsel of Record Winston Strawn LLP 1700 K Street, NW Washington, DC 20006 (202) 282- 5000 PROF. Ross SANDLER MICHAEL J. FRIEDMAN PROF. DAVID SCHOENBROD Am E. WALDMAN New York Law School Winston Strawn LLP 57 Worth Street 200 Park Avenue New York , NY New York , NY 10166 (212) 431- 2100 (212) 294- 6700 Counsel for Amicus Curiae
Transcript
Nos. 08-289 & 08-294
In tbe upreme ourt of tbe Wniteb tate
THOMAS C. HORNE , SUPERINTENDENT OF PUBLIC IN-STRUCTION OF THE STATE OF ARIZONA , PETITIONER
MIRIAM FLORES ET AL. RESPONDENTS
SPEAKER OF THE ARIZONA HOUSE OF REPRESENTATIVESAND PRESIDENT OF THE ARIZONA SENATE , PETITIONERS
MIRIAM FLORES ET AL. RESPONDENTS
ON PETITIONS FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF FOR THE WASHINGTON LEGALFOUNDATION AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS
DANIEL J. POPEORICHARD A. SAMPWashington Legal Foundation2009 Massachusetts Ave. , NWWashington, DC 20036(202) 588-0302
GENE C. SCHAERRCounsel of RecordWinston Strawn LLP1700 K Street, NWWashington, DC 20006(202) 282-5000
PROF. Ross SANDLER MICHAEL J. FRIEDMANPROF. DAVID SCHOENBROD Am E. WALDMANNew York Law School Winston Strawn LLP57 Worth Street 200 Park AvenueNew York, NY New York, NY 10166(212) 431- 2100 (212) 294- 6700
Counsel for Amicus Curiae
QUESTIONS PRESENTED1. Whether a federal-court injunction seeking to
compel institutional reform should be modified in thepublic interest when the original judgment could nothave been issued on the state of facts and law thatnow exist , even if the named defendants support theinjunction.
2. Whether compliance with NCLB's extensiverequirements for English-language instruction is suf-ficient to satisfy the EEOA's mandate that Statestake "appropriate action" to overcome language bar-riers impeding students' access to equal educationalopportunities.
III
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... iTABLE OF AUTHORITIES ..................................... iv
INTRODUCTION AND INTERESTS OFAMICUS CURIAE......................................................
A. Congress ' Enactment of NcLB ..................
B. The Post-NcLB Proceedings ..................... 5
REASONS FOR GRANTING THEPETITION.................................................................. 8
I. THE NINTH CIRCUIT'S OVERLYDEFERENTIAL STANDARD OF REVIEWENTRENCHES JUDICIAL INTRUSIONSINTO POLITICAL PROCESSES FORLONGER THAN IS CONSTITUTIONALLYPERMISSIBLE , AND NEEDS TO BECORRECTED BY THIS COURT ......................... 8
II. REVIEW IS NEEDED TO GIVE EFFECTTO CONGRESS' MANDATES IN THE NOCHILD LEFT BEHIND ACT ............................. 16
Letters from The Federal Farmer to The Re-publican No. 3 (Oct. 10 , 1787), in 1 The De-bate on the Constitution 245 (BernardBailyn ed. , 1993) .....................................................
Publius (Alexander Hamilton), The FederalistNo. 78 (May 28 , 1788), in 2 The Debate onthe Constitution 467 (Bernard Bailyn ed.
Sandler & Schoenbrod Democracy By Decree(2002).....................................................................
Sandler & Schoenbrod
, "
From Status toContract and Back Again: Consent Decreesin Institutional Reform Litigation " 27Review of Litigation 115 (2007) ...........................
White House Reporthttp://www . whitehouse. gov/news/reports/no-child-Ieft-behind.html............................................ 4
INTRODUCTION ANDINTERESTS OF AMICUS CURIAE
This case presents an extraordinary example of astate-level political minority losing its agenda at theballot box but nonetheless imposing its will on themajority through the intervention of sympathetic fed-eral courts. Only this Court can reverse the NinthCircuit's remarkable expansion of federal judicial au-thority and, in so doing, prevent the enormous dam-age that court's ruling will otherwise do to the peopleof Arizona and their democratic institutions.
At the heart of this case is an effort by the Gover-nor of Arizona and her allies to pass a broad educa-tion spending increase which the Arizona Legislaturerejected in favor of a competing and less expensivesolution. Rather than accept the decision by the peo-ple s representatives , the Governor instead sought touse an outdated injunction order , naming her state
a defendant to compel the Legislature to pass heragenda.
The courts below were happy to accommodate theGovernor. Acting solely on the authority of a 1974federal statute requiring states to "take appropriateaction to overcome language barriers that impedeequal participation by its students in its instructionalprogram " the district court struck down the Legisla-
1 The parties have consented to the filing of this brief. Lettersof consent have been lodged with the Court. In accordance with
Rule 37. amicus states that no counsel for any party has au-thored this brief in whole or in part , and no person or entity,other than amicus and its counsel has made a monetary contri-bution to the preparation or submission of this brief. More thanten days prior to the due date , counsel for Amicus providedcounsel for respondents with notice of its intent to file this brief.
ture s new program. The district court took umbrageat the fact that the Legislature s approach did not fol-low the exact framework for improving Arizona s lim-ited English proficient ("LEP") education programthat the district court itself had unilaterally designedseven years earlier. The district court's frameworkmeasured remedial success in one way only - by theamount of LEP funding allotted per LEP student -rather than in the manner subsequently required byCongress in the No Child Left Behind ("NcLB") law.But the district court nonetheless struck down theLegislature s new program because it was not faithfulto the district court's gloss on what Congress meantin 1974.
The district court's approach far exceeded its au-thority to interfere with duly enacted state legisla-tion , and flouted the express findings of the veryCongress whose earlier work it was purporting to en-force. The district court's unbridled exercise of judi-cial power thus raises grave concerns not only of fed-eralism , but also of separation of powers. Indeed, asMontesquieu perceptively noted more than 250 yearsago
, "
there can be no liberty where. . . the power ofjudging be not separated from the legislative. . . pow-ers." Montesquieu , The Spirit of the Laws (1748).
The Washington Legal Foundation ("WLF") takesthis canon to heart. WLF is a national nonprofit pub-lic interest law and policy center dedicated to , amongother issues , opposing intrusions by the federal gov-ernment into the operation of state governments , andof the federal judiciary into the proper functions ofthe other federal branches. WLF is appalled by thedistrict court's interference with the local politicalprocess in this case , and urges review and reversal to
restore the proper separation of powers and federal-ism principles that were violated by the court below.
STATEMENT
This case began as a challenge to the adequacy ofthe LEP program in the Nogales Unified School Dis-trict ("Nogales
).
Mter several years of litigation , in2000 , a class of Nogales parents (named "Flores" afterthe lead plaintiff succeeded in obtaining a declara-tory judgment finding Nogales s LEP program to bein violation of the Equal Education Opportunity Actof 1974 , 20 U. c. ~ 1703(f) (the "EEOA"). The cen-tral basis for the district court's finding of liabilitywas that the amount of LEP funding per LEP studentthen being spent in Nogales was one-third of the av-erage LEP funding per student found in the onlystudy of the subject then available. See Appendix toPetition in No. 08-294 ("Pet. App. ) at 149a.
The district court's finding of liability was fol-lowed a year later by an injunction directing theState of Arizona to figure out how much ideallyshould be spent per student , and to then spend thatamount. Flores v. Arizona No. CV-92-596 , 2001 WL1028369 (D. Ariz. Jun. 25 , 2001).
A. Congress' Enactment of NCLB
The following year , in 2002 , Congress enacted theNo Child Left Behind Act , 20 U. c. ~~ 6301 et seq.
NcLB"), which radically changed the school fundinglandscape , particularly with respect to LEP educa-tion.
First and foremost, NcLB reflected a broad, bi-
partisan consensus that schools needed to be held tostricter standards of accountability. As PresidentBush stated, NcLB was "based on the fundamental
notion that an enterprise works best when responsi-bility is placed closest to the most important activityof the enterprise , when those responsible are givengreatest latitude and support, and when those re-sponsible are held accountable for producing results.See http://www . whitehouse. gov/news/reports/no-child-left- behin d.h tml.
Congress devoted Title III of NcLB to the educa-tion of LEP children. In addition to imposing strictnew accountability standards , Title III was intendedto put an end to the common scenario of LEP stu-dents being isolated from their peers and left indefi-nitely in a dead-end cocoon of instruction in their na-tive language.
By contrast , under the outdated statute invokedby the respondents here , schools were not actuallyrequired to teach LEP students English. Al that wasrequired was "appropriate action" to overcome theirlanguage barriers. In many instances , this meantteaching LEP students in their native language. See
, Lau v. Nichols 414 U.S. 563 , 564-65 (1974) (not-ing that "(n)o specific remedy is urged upon us.Teaching English to the students of Chinese ancestrywho do not speak the language is one choice. Givinginstructions to this group in Chinese is anotherCastaneda v. Pickard 648 F.2d 989 , 1009 (5th cir.1981) (finding that "Congress , in describing the re-medial obligation it sought to impose on the states the EEOA, did not specify that a state must provide aprogram of 'bilingual education
This system did not work. As one of NcLB'sponsors , Senator Gregg, explained, bilingual educa-tion "got off track"
Instead of kids learning English , we ended upisolating kids , took them on a train track thattook them to their language and left themthere, put them in schools and classroomswhere they basically were being taught in theirlanguage and they were not being allowed tolearn English essentially, or they were not be-ing asked to learn English.
gress disapproved of this result for the obvious reasonthat it hindered immigrant children s ability to com-pete in this country predominantly English-speaking workforce once they got out of school. Id.
NcLB sought to fix this problem in two ways:First , it required LEP programs to produce results inteaching LEP children English , and, second, it per-
mitted parents to pull their LEP children out of bilin-gual classes if they thought they would be betterserved in English-only classes. Senator Lott heraldedthe latter of these changes as "one of the bill's mostsignificant achievements. 147 Congo Rec. S13365S13420 (Dec. 18 2001).
Congress implemented these changes through a
detailed statutory framework. It required states andlocal school districts to (1) implement new educa-tional programs containing certain enumerated basicfeatures (2) develop quantifiable performancebenchmarks , and (3) to report annually on their suc-cess in meeting those benchmarks. See 20 U. c. ~~
6801 , et seq.
B. The Post-NCLB Proceedings
Arizona education programs were revised signifi-cantly to comply with NcLB' s numerous precise man-dates. The process moved slowly, particularly after
the inauguration of a new Governor in 2003 , whichplaced control of the executive and legislativebranches in opposing parties. Work on a new LEPprogram did not begin until 2005. The Legislaturepassed three different bills to address LEP educationbut the Governor considered each to be inadequatelyfunded and vetoed all of them.
Finally, the Governor sought refuge in the districtcourt which had long shown a preference for the largefunding increases she had asked for, but failed towin , in the Legislature. As part of her strategy, theGovernor permitted a fourth attempt at LEP programrevision - HB 2064 - to become law , stating that shewas "convinced that getting this bill into court now isthe most expeditious way ultimately to bring thestate in compliance with federal law." And she ad-mitted that she had allowed the bill to become law "that we can move this dispute to a diferent forumand get a ruling from the Flores Court as to its suffi-ciency." Pet. App. at 26a n. 16.
The district court was only too happy to oblige.Instead of examining whether the Legislature s newprograms satisfied the detailed requirements for LEPprograms that Congress had spelled out in 2002 inNcLB - which the Legislature s new programsplainly did satisfy - the district court struck downmuch of the new programs on the ground that theydid not satisfy the district court's unilateral interpre-tation of what Congress wanted back in 1974 when itpassed the EEOA. See Pet. App. at ll1a- 115a. Thedistrict court thus ignored the NcLB and returned toits old spending per LEP student test, which coinci-dentally could only be satisfied by the substantialspending increases advocated by the Governor andher minority allies.
Because the Governor supported this result andcontrols the State s litigation positions , the legislativemajority was unrepresented in the district court. Butthe legislative petitioners intervened to give the legis-lative majority a voice (and to contest the punitivefines the district court was threatening against theLegislature), and appealed the district court's ruling.
The Ninth Circuit affirmed. Like the districtcourt , the Ninth Circuit could not get beyond its fixa-tion on whether the State had complied with the 2001injunction requiring increased LEP spending per stu-dent.
In insisting on compliance with the 2001 injunc-tion , moreover , the Ninth Circuit applied an overly-strict standard for determining whether a prior in-junction should be lifted. Whereas this Court'sprecedent requires district courts to ask whether thefederal law upon which an injunction was based isstill being violated, the Ninth Circuit looked only atwhether the facts or law upon which the injunctionwas based had changed. See Pet. App. at 61a-63a.The Ninth Circuit's approach thus gave far greaterdeference to the original order than it should have.
The Ninth Circuit then misapplied its overly-strictstandard, finding that the underlying law had notchanged when in fact it had changed with the pas-sage of NcLB. The Ninth Circuit wrote that theEEOA and NcLB, despite having similar objectives
proceeded on two different tracks , and that NcLBcompliance , despite being more strictly defined, didnot necessarily entail EEOA compliance. Pet. App. at72a- 75a.
The Ninth Circuit went on to approve the districtcourt's continued focus on its own LEP-funding-per-
student test , which necessarily yielded the outcomethe Governor and her minority allies sought: morespending, over the objection of Arizona s voters.
REASONS FOR GRANTING THE PETITION
In addition to the compelling reasons offered inthe petition amicus wishes to highlight two criticalconsiderations supporting review in this case. First
the Ninth Circuit's standard of review of a motion forrelief from an injunction is at odds with this Court'sprecedent, in that it gave the prior decree far moredeference than it deserves. Throughout the vast areaoverseen by the Ninth Circuit, this error will en-trench judicial intrusions into the political process forlonger than the minimum necessary to enforce fed-eral laws, thereby trampling bedrock principles of
separation of power and federalism. Second, the de-cisions below fail to give effect to Congress' clearmandate in the No Child Left Behind Act. Review istherefore warranted to enforce those requirements.
I. THE NINTH CIRCUIT'S OVERLY DEFER-ENTIAL STANDARD OF REVIEW EN-TRENCHES JUDICIAL INTRUSIONS INTOPOLITICAL PROCESSES FOR LONGERTHAN IS CONSTITUTIONALLY PERMISSI-BLE , AND NEEDS TO BE CORRECTED BYTHIS COURT
During the founding era , the limits on the powerof federal courts to issue broad injunctions were oneof the few issues upon which both the Federalists andthe Anti- Federalists agreed. See Letters from TheFederal Farmer to The Republican No. 3 (Oct. 10
1787), in 1 The Debate on the Constitution 245 , 273(Bernard Bailyn ed. , 1993) (Anti-Federalist concernsthat federal courts would abuse equity powers); Pub-
lius (Alexander Hamilton), The Federalist No. (May 28 , 1788), in 2 The Debate on the Constitution467 , 468 (Bernard Bailyn ed., 1993) (Federalist re-sponse that judges were capable of "no active resolu-tion whatever ). Yet modern institutional reform liti-gation raises the very specter of legislation by un-elected judges that the framers uniformly rejected.See, e.g. Allen v. Wright 468 U.S. 737 , 766 (1984) (ob-serving "the substantial separation of powers barriersto a suit seeking an injunction to reform administra-tive procedures ). This concern is preeminent both inconsidering whether an injunction is warranted inthe first instance , and, more pertinent here , whetheran existing injunction should be continued or takendown.
1. On numerous occasions , this Court has visitedthe issue of what level of deference a district courtshould give to its own earlier equitable decrees afterthe passage of time. A brief survey of those casesshows a clear trend away from deference to earlierrulings and toward what amounts to de novo reviewbased solely on current circumstances.
First , in United States v. Swift Co. 286 U.
106 (1932), Justice Cardozo created the so-calledgrievous wrong" test for evaluating any request to
modify an injunction or consent decree. At its mostbasic , this standard made it possible - yet extraordi-narily difficult - to upset the original intent behindthe district court's injunction.
Swift involved an antitrust consent decree enteredagainst the five largest meat packers in the country,all of which promised to refrain from distributing avariety of foods at the retail level. Id. at 111. Despite
their original assurances, each immediately tried
various tactics to avoid its obligations under the con-sent decree , including moving to modify the originaldecree based on alleged changes in the food industry
since the original decree had been agreed upon. Id.at 112- 14. Mter the then-Supreme Court of the Dis-trict of Columbia granted the modifications, the
United States , joined by various wholesale grocersappealed. Id. at 113- 14.
The Swift Court determined that a court had in-herent power to modify its own decree regardless ofwhether the decree expressly provided for such modi-fication. Id. at 114. Indeed, Justice Cardozo notedthat even "(i)f the reservation had been omittedpower there still would be by force of principles in-herent in the jurisdiction of the chancery. A continu-ing decree of injunction directed to events to come issubject always to adaptation as events may shape theneed. Id.
But while the power existed, it would not be easyto wield. In explicating the standard by which a dis-trict court should judge whether changed circum-stances merit modification , Justice Cardozo stated:
Weare not at liberty to reverse under the guiseof readjusting.... The inquiry for us is whetherthe changes (in the grocery industry) are so
important that dangers , once substantial , havebecome attenuated to a shadow. No doubt thedefendants will be better off if the injunction isrelaxed, but they are not suffering hardship soextreme and unexpected as to justify us in say-ing that they are the victims of oppression.
Nothing less than a clear showing of grievouswrong evoked by new and unforeseen condi-tions should lead us to change what was de-
creed after years of litigation with the consentof all concerned.
Id. at 119.
This Court substantially modified the Swift stan-dard in Board of Educ. of Oklahoma City Pub. Schs.v. Dowell 498 U.S. 237 (1991). There the Court con-
sidered whether a school district could extricate itselffrom a district court's busing order if the local au-thorities had complied with the court's decree for areasonable amount of time and achieved results. Id.at 243. In that case , the district court had found
jure segregation and ordered an extensive busingscheme that brought in students from a wide range ofdiverse residential districts. Dowell v. Bd. of Educ. ofthe Oklahoma Pub. Schs. 338 F. Supp. 1256 (W.
Okla.
),
aff'd 465 F.2d 1012 (10th cir. 1972). The citycomplied with the so-called "Finger Plan" for fiveyears achieving substantial desegregation andprompting the district court to terminate its supervi-sion of the school system. Dowell 498 U.S. at 242.
By 1985 , however, a group of Mrican-Americanfamilies challenged the school system s new plan ofneighborhood elementary school assignment as a re-turn to segregation and, thus , a violation of the origi-nal court-ordered desegregation. Id. at 240. TheTenth Circuit ultimately found that , because an in-junction remained in effect until a school districtcould show "grievous wrong evoked by new and un-foreseen conditions " something Oklahoma City couldnot show , the district court should continue adminis-tering the school district to ensure no regression insegregation. Dowell v. Bd. of Educ. of the OklahomaCity Pub. Schs. 890 F.2d 1483 , 1490 (10th cir. 1989).
This Court reversed. It not only discarded thegrievous wrong" standard, but noted that because
desegregation decrees were always intended to temporary, district court control of school districtsshould last no longer than absolutely necessary toremedy past wrongs. Dowell 498 U.S. at 248. TheCourt emphasized that the injunction should merelybe transitional , to foster a "transition to a unitary,nonracial system of public education " and that if theschool district was being operated in compliance withthe law and was unlikely to return to its former waysno additional showing was required to lift the injunc-tion. Id. at 247-48.
A year after Dowell in Rufo v. Inmates of SuffolkCounty Jail 502 U.S. 367 (1992), the Court an-nounced an even more "flexible" standard for evaluat-ing continuing injunctions.
In Rufo a district court had long ago barred Mas-sachusetts officials from using the decaying CharlesStreet Jail to house prisoners awaiting trial in smalldouble-bunked cells. The state officials sought modi-fication of the applicable consent decree to permitdouble-bunking in any event because of a vast in-crease in the number of prisoners. Rufo 502 U.S. at
376. The district court , applying the pre-Dowellgrievous wrong" test , denied the requested relief. Id.
at 377. The First Circuit affirmed.
2 The Swift grievous wrong" test may still be applicable in
situations where the court is being asked to lift a decree whilethe plaintiffs statutory rights are still being violated. SeeDowell 498 U.S. at 247; Sandler & Schoenbrod Democracy ByDecree at 175 n.45 (2002). But this is not the case here.
This Court reversed and remanded for further factfinding. The Court noted the need for "flexibility" inpublic institutional reform cases such as this wherethe decree affects not just the parties , but the publicas well. Id. at 381. The Court found that where un-foreseen changes occur in the facts or in the law form-ing the basis for the decree
, "
the district court shoulddetermine whether the proposed modification issuitably tailored to the changed circumstance. Id.
391. In structuring such revisions , this Court wrotethat the district court should bear three principles inmind: (1) the modification must not violate the un-derlying law; (2) the modification must be narrowlytailored to resolve only the problems created by thechanged circumstance; and (3) the district courtshould defer to local government administrators asmuch as possible. Id. at 391-92.
This Court's most recent refinement of its stan-dard for modiying an injunction came in Frew
Hawkins 540 U.S. 431 (2004). There, a group ofmothers of children eligible for a state-administeredMedicaid program sued the State of Texas for failingto provide those Medicaid services. In 1993 , the dis-trict court ruled in their favor, and in 1996 , the dis-trict court entered a lengthy consent decree compel-ling the State to comply with the Medicaid law. Twoyears later, the district court found that the Statehad violated the decree. The State appealed, arguingthat the decree was unenforceable to the extent it ex-ceeded the scope of the Medicaid law it purported toenforce , and that the State was in compliance withthe Medicaid law.
This Court found that the decree was enforceablebut that the State was entitled to wide latitude inshowing why it should be modified. The Court wrote
that "principles of federalism require that the stateofficials with front-line responsibility for administer-ing the program be given latitude and substantialdiscretion. Frew 540 U.S. at 442. The Court notedthat a State , unlike a private party, "depends uponsuccessor officials, both appointed and elected, tobring new insights and solutions to problems of allo-cating revenues and resources " and that those suc-
cessor officials ought to be given the opportunity toshow the wisdom of their new insights. Id. TheCourt thus concluded that , to "ensure that when theobjects of the decree have been attained, responsibil-ity for discharging the State s obligations is returnedpromptly to the State and its officials " a districtcourt should modify its decree " (i)f the State estab-lishes reason" to do so. Id.
This standard is effectively de novo review, a farcry from the deference to an existing decree embodiedin Justice Cardozo s decision in Swift.
Bit by bit , this Court has thus moved away fromdeferring to earlier judicial decrees and towardgreater fidelity to the separation of powers principlesthat guard against judicial intrusion into the politicalarena. This Court has now recognized that the over-riding goal in injunctions and consent decrees issuedin institutional reform cases is neither the protectionof a district judge s power over implementation ofnecessary reforms , nor the enforcement of the plain-tiffs rights to what she won in the earlier decree.
3 " (O)verly broad consent decrees work an inappropriate shiftfrom judicial protection of the plaintiffs - in their status asrights-holders - to judicial protection of plaintiffs in a newstatus - as beneficiaries of a contract. . . . This not-so-subtleshift in theory collides with fundamental democratic principles.Sandler & Schoenbrod
, "
From Status to Contract and Back
Instead, the goal is to return power to local authori-ties as quickly as possible. Rufo 502 U.S. at 391-92;Frew 540 U.S. at 442.
2. Contrary to that goal , the Ninth Circuit hereconstructed a particularly onerous burden for modify-ing the district court's injunction , requiring a show-ing that "the basic factual premises" of the court'sholding had been erased, or that " some change in thelegal landscape" made the original ruling improper.Pet. App. at 63a. Rather than asking - as Frew di-rects - whether the current set of facts matched thecurrent law, the Ninth Circuit asked whether the cur-rent set of facts and law matched the facts and lawseven years ago. This inappropriately high hurdlereminiscent of Justice Cardozo s "grievous wrongtest in Swift violates this Court's precedents whichhave sought a more flexible approach to extricatingstates from court-imposed injunctions or consent de-crees.
Ironically, the Ninth Circuit recognized the sub-stantial progress Arizona and Nogales have madesince the Flores litigation began. Pet. App. at 30a.Indeed, the court below admitted that the state hadsignificantly improved its (LEP) infrastructure" andincreased overall school funding and... (LEP) pro-
gram-specific funding. Id. It further acknowledgedthat HB 2064 would "augment" and "further improveLEP programs statewide and summarized significantchanges in education policy and progress state-wide.Id. at 30a-34a (describing Arizona s progress in de-
tail).
Again: Consent Decrees in Institutional Reform Litigation " 27Review of Litigation 115 , 115- 16 (2007).
Under Swift, such progress might have been in-sufficient to override Justice Cardozo s insistence on
deferring to the original decree. But under Frewthese findings warrant modification of the injunctionand the return of education policymaking to state andlocal officials. Only this Court can ensure that theprinciples articulated in Frew are respected and ap-
plied in this case , as well as other cases arising in theNinth Circuit.
II. REVIEW IS NEEDED TO GIVE EFFECT TOCONGRESS' MANDATES IN THE NO CHILDLEFT BEHIND ACT
The decision below merits this Court's review for asecond and equally important reason: it fails to re-
spect the principles that Congress enacted in the
NcLB Act, and in so doing fails to apply NcLB'framework for measuring progress in implementingimprovements to Arizona s LEP programs.
1. As previously noted, the district court based itsdecision to deny petitioners' Rule 60(b)(5) motion onits finding that the per-LEP-student cost of providingadequate LEP instruction is greater than both theState s current fund level and what it proposes tofund under HB 2064. Pet. App. at 149a. The districtcourt focused on per-student LEP funding becausethat was the yardstick it used in its 2000 order find-ing the State to be in violation of the EEOA. The dis-trict court reasoned that if the basis for the Stateliability in 2000 was inadequate per-student LEPspending, the way to measure the State s remediationof that liability was to see if the same spending hadsubsequently increased to acceptable levels. TheNinth Circuit sustained this approach. Pet. App. at72a.
But the district court's incremental funding yard-stick was conceived in 2000 , at a time when Congresshad provided no guidance on how to measure aState s compliance with federal LEP requirements.Congress filled that void in 2002 when NcLB becamelaw. Accordingly, courts gauging the sufficiency of anLEP program since the passage of NcLB have nowbeen given a detailed set of measurement tools andmay no longer resort to yardsticks of their own mak-mg.
2. Because it is undisputed that Arizona s LEPprogram is presently in full compliance with themeasurements mandated by the NcLB , the sameprogram is necessarily also in compliance with theEEOA. To see why that is so , it is necessary to re-view the EEOA's history.
Congress' purpose in passing the LEP provision ofthe EEOA in 1974 was to codify certain federalagency guidelines dealing with non-English-speakingstudents. Those guidelines required school districtswith national origin-minority students unable tospeak English to "take affirmative steps to rectify thelanguage deficiency in order to open its instructionalprogram to these students." The same regulationshad only recently been upheld by this Court in Lau
Nichols 414 S. 563 , 568 (1974). In keeping withthis purpose , the LEP provision of the EEOA simplyrequires states to "take appropriate action to over-come language barriers that impede equal participa-tion by its students in its instructional programs." 20
c. ~ 1703(f). At that time , however , Congress leftunanswered the question of what educational pro-grams would constitute "appropriate action.
Most courts grappling with that question (includ-ing the courts below) have tracked the analysis of theFifth Circuit in Castaneda v. Pickard 648 F.2d 989(5th cir. 1981). Under the Castaneda test " as it hascome to be known , a state s LEP program will be con-sidered "appropriate action" sufficient to satisfy theEEOA where it is:
(1) informed by an educational theory recog-nized as sound by some experts in the field orat least, deemed a legitimate experimentalstrategy;.. .
(2) reasonably calculated to implement effec-tively the educational theory adopted by theschool; (and
(3) proven), after being employed for a period oftime sufficient to give the plan a legitimatetrial, to produce results indicating that thelanguage barriers confronting students are ac-tually being overcome.
Id. at 1009- 10.
Here it is undisputed that Arizona s LEP programis based on a well-established educational theory andthat the first prong of the Castaneda test has thusbeen satisfied. Accordingly, the decisions below fo-cused primarily on the second and third prongs -whether Arizona devoted sufficient resources to im-plement its LEP program and whether that programhas produced adequate results. And the courts belowchose to measure Arizona s progress in these areas byexamining the State s LEP funding per student.
In 2000 , in the absence of any further guidancefrom Congress or the appellate courts , the districtcourt's decision to use incremental funding to meas-
ure the adequacy of Arizona s LEP program was notunreasonable. But in 2002 , Congress did provide fur-ther guidance. Congress enacted the No Child LeftBehind Act , which featured an entire title mandatingLEP programs , and included a detailed set of meas-urements for determining whether those programswere adequate. It thus makes no sense to assess theadequacy of these programs under a different , judi-cially created standard.
3. Congress s objectives in passing the LEP provi-sions of NcLB were identical to its objectives in en-acting the EEOA's LEP standard. In both Acts , Con-gress sought to make sure that LEP students werenot being left behind because they lacked Englishlanguage skills. In the EEOA, this objective was ex-pressed as a desire to eliminate "barriers that impedeequal participation" of LEP students (20 U. c. ~
1703(f)). In NcLB , Congress wrote that its purposewas "to assist all limited English proficient childrenincluding immigrant children and youth , to achieveat high levels in the core academic subjects so thatthose children can meet the same challenging Stateacademic content and student academic achievementstandards as all children are expected to meet"
(20 U. c. ~ 6812(2)).
Similarly, the EEOA leaves "educators and publicofficials charged with responsibility for directing theeducational policy of a school system" with the task ofchoosing between sound but competing theories " so
long as those theories are "recognized as sound bysome experts in the field or, at least , deemed a le-gitimate experimental strategy. Castaneda, 648
2d at 1009. Likewise , NcLB "provide(s) State edu-cational agencies and local educational agencies withthe flexibility to implement language instruction edu-
cational programs , based on scientifically based re-search on teaching limited English proficient chil-dren , that the agencies believe to be the most effectivefor teaching English" (20 U. c. ~ 6812(9)) (emphasisadded).
But while the ends of the EEOA and NcLB arethe same , only NcLB spells out the means of achiev-ing them. The EEOA - even with the interpretive as-sistance of Castaneda - offers only vague mandatesas to how to comply with its goals , requiring "pro-grams and practices ... reasonably calculated to im-plement effectively the educational theory adopted bythe school." Castaneda 648 F.2d at 1010.
NcLB , on the other hand, contains a lengthy listof "required" activities which school districts "shall"provide to implement LEP programs , as well as a listof "authorized" activities which school districts "mayprovide. See 20 U. c. ~~ 6825(c), (d). These activi-ties include, for example
, "
p rovid (in g) high -qualityprofessional development to teachers , principals andother school personnel
tional software, and assessment procedures " andproviding tutorials and academic or vocational edu-
cation for limited English proficient children. Id.
Similarly, NcLB contains far more precise guid-ance on how to measure a state s success in imple-
menting the required programs. Whereas EEOAcompliance under Castaneda vaguely tests whetheran LEP program "fails , after being employed for a pe-riod of time sufficient to give the plan a legitimatetrial , to produce results indicating that the languagebarriers confronting students are actually being over-
come (Castaneda 648 F.2d at 1010), NcLB ex-
pressly requires states to develop "annual measur-
able achievement objectives for limited English profi-cient children." 20 U. c. ~ 6842. These objectivesmust , at a minimum , include annual increases in thenumber or percentage of children making progress inlearning English , annual increases in the number orpercentage of children attaining English proficiencyby the end of each school year , and adequate yearlyprogress in achieving benchmarks applicable to all(including non- LEP) students generally. Id.
The detailed requirements of NcLB were a delib-erate departure from the vague pronouncements ofthe EEOA. Such detail would have been wholly un-necessary had Congress been satisfied with the then-existing judge-made minimum standards of theEEOA. In passing NcLB , Congress perceived a fail-ure in LEP education , and spoke clearly in announc-ing what states needed to do to improve.
4. By contrast , the decision below rested on thefaulty conclusion that the EEOA and NcLB , despitehaving similar objectives , proceeded on two differenttracks, and that NcLB compliance, despite beingmore strictly defined, did not necessarily entailEEOA compliance. As the Ninth Circuit expressed itthe EEOA is "an equality-based civil rights statutewhereas NcLB is "a program for overall, gradualschool improvement. Pet. App. at 72a-73a. "TheEEOA' s concerns , in other words , lie fundamentallywith the current rights of individual students , whileNcLB seeks gradually to improve their schools." Pet.App. at 75a.
On this point, then, the principal flaw in theNinth Circuit's reasoning is that it ignores the factthat the district court chose to remedy the EEOA vio-
lations it found by mandating its own program ofgradual school improvement" even though Congress
in the NcLB has now mapped out a different methodfor achieving such gradual improvement. Even if theNinth Circuit is correct that the two statutes look todifferent time frames and can in the abstract , havedifferent remedies - that is , that an EEOA violationcan occur today and can be enforced by a privateright of action whereas an NcLB violation can onlyhappen after years of missed objectives and cannot beenforced by a private right of action - in this case , theremedy the district court chose is squarely addressedand rejected by the text of NcLB.
The Ninth Circuit also erred in overstating theclaimed conflict between the statutes. Contrary tothe Ninth Circuit, it was not necessary to considerwhether NcLB "repealed" the EEOA, or even super-seded its liability rule. This Court has repeatedlyheld that a judicial interpretation of an earlier stat-ute may be supplanted by a later statute without "re-pealing" the earlier statute. See United States
Fausto 484 U.S. 439 , 453 (1988); Vermont Agency ofNatural Res. v. U.S. ex rel. Stevens 529 U.S. 765 , 786
17 (2000) ("it is well established that a court canand should, interpret the text of one statute in thelight of text of surrounding statutes , even those sub-sequentlyenacted"
);
Food Drug Admin. v. BrownWilliamson Tobacco Corp. 529 U.S. 120, 133
(2000) ("the meaning of one statute may be affectedby other Acts , particularly where Congress has spo-ken subsequently and more specifically to the topic athand"
All that was at issue here was whether NcLB af-fected the particular remedy imposed by the districtcourt in this case. That remedy required the State to
formulate and implement programs to improve thequality of its LEP instruction over a multi-year pe-riod, and to measure their success. At the time it wasfashioned, in the absence of any guidance from Con-gress, the district court's remedy was a reasonableinterpretation of the EEOA's requirements. But in2002 , Congress spelled out at length what LEP pro-grams must include , how they should be improvedand how to measure those improvements. Judicialguesswork as to how to carry out Congress s will wasno longer needed or appropriate.
CONCLUSION
In insisting on compliance with its own criteria for
measuring the adequacy of Arizona s LEP programthe district court not only usurped the power of theArizona Legislature to regulate traditional statefunctions , but also usurped the power of Congress tomandate its own carefully-considered policies. Re-view is needed to restore control of Arizona s schools
to its voters and to give effect to Congress ' mandatein NCLB. The petition for a writ of certiorari shouldbe granted.
DANIEL J. POPEORICHARD A. SAMPWashington Legal Foundation2009 Massachusetts Ave. , NWWashington, DC 20036(202) 588-0302
Respectfully submitted.
GENE C. SCHAERRCounsel of RecordWinston Strawn LLP1700 K Street, NWWashington, DC 20006(202) 282-5000
PROF. Ross SANDLER MICHAEL J. FRIEDMANPROF. DAVID SCHOENBROD Am E. WALDMANNew York Law School Winston Strawn LLP57 Worth Street 200 Park AvenueNew York, NY New York, NY 10166(212) 431- 2100 (212) 294- 6700
