Lead Opinion
delivered the opinion of the Court.
These consolidated cases arise from litigation that began in
As we explain, the District Court and the Court of Appeals misunderstood both the obligation that the EEOA imposes on States and the nature of the inquiry that is required when parties such as petitioners seek relief under Rule 60(b)(5) on the ground that enforcement of a judgment is “no
I
A
In 1992, a group of students enrolled in the ELL program in Nogales and their parents (plaintiffs) filed suit in the District Court for the District of Arizona on behalf of “all minority ‘at risk’ and limited English proficient children . . . now or hereafter, enrolled in [the] Nogales Unified School District . . . as well as their parents and guardians.” Flores v. Arizona,
The relevant portion of the EEOA states:
“No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by—
“(f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” 20 U. S. C. §1703 (emphasis added).
By simply requiring a State “to take appropriate action to overcome language barriers” without specifying particular actions that a State must take, “Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA.” Castaneda v. Pickard,
In August 1999, after seven years of pretrial proceedings and after settling various claims regarding the structure of Nogales’ ELL curriculum, the evaluation and monitoring of Nogales’ students, and the provision of tutoring and other compensatory instruction, the parties proceeded to trial. In January 2000, the District Court concluded that defendants were violating the EEOA because the amount of funding the State allocated for the special needs of ELL students (ELL incremental funding) was arbitrary and not related to the actual funding needed to cover the costs of ELL instruction in Nogales.
B
In the years following, the District Court entered a series of additional orders and injunctions. In October 2000, the court ordered the State to “prepare a cost study to establish the proper appropriation to effectively implement” ELL programs. Flores v. Arizona,
In January 2005, the court gave the State 90 days to “appropriately and constitutionally fun[d] the state’s ELL programs taking into account the [Rule’s] previous orders.” No. CIV. 92-596-TUC-ACM, p. 5, App. 393. The State failed to meet this deadline, and in December 2005, the court held the State in contempt. Although the legislature was not then a party to the suit, the court ordered that “the legislature has 15 calendar days after the beginning of the 2006 legislative session to comply with the January 28,2005 Court order. Everyday thereafter ... that the State fails to comply with this Order, [fines] will be imposed until the State is in compliance.” Flores v. Arizona,
C
Defendants did not appeal any of the District Court’s orders, and the record suggests that some state officials supported their continued enforcement. In June 2001, the state attorney general acquiesced in the statewide extension of the declaratory judgment order, a step that the State has explained by reference to the Arizona constitutional requirement of uniform statewide school funding. See Brief for Appellee State of Arizona et al. in No. 07-15603 etc. (CA9), p. 60 (citing Ariz. Const., Art. 11, § 1(A)). At a hearing in February 2006, a new attorney general opposed the superintendent’s request for a stay of the December 2005 order imposing sanctions and fines, and filed a proposed distribution of the accrued fines.
In March 2006, after accruing over $20 million in fines, the state legislature passed HB 2064, which was designed to implement a permanent funding solution to the problems identified by the District Court in 2000. Among other things, HB 2064 increased ELL incremental funding (with a 2-year per-student limit on such funding) and created two new funds — a structured English immersion fund and a compensatory instruction fund — to cover additional costs of ELL programming. Moneys in both newly created funds were to be offset by available federal moneys. HB 2064 also instituted several programming and structural changes.
The Governor did not approve of HB 2064’s funding provisions, but she allowed the bill to become law without her signature. Because HB 2064’s incremental ELL funding increase required court approval to become effective, the Governor requested the attorney general to move for accelerated consideration by the District Court. In doing so, she explained: “ ‘After nine months of meetings and three vetoes, it is time to take this matter
With the principal defendants in the action siding with the plaintiffs, the Speaker of the State House of Representatives and the President of the State Senate (Legislators) filed a motion to intervene as representatives of their respective legislative bodies. App. 55. In support of their motion, they stated that although the attorney general had a “legal duty” to defend HB 2064, the attorney general had shown “little enthusiasm” for advancing the legislature’s interests. Id., at 57. Among other things, the Legislators noted that the attorney general “failed to take an appeal of the judgment entered in this case in 2000 and has failed to appeal any of the injunctions and other orders issued in aid of the judgment.” Id., at 60. The District Court granted the Legislators’ motion for permissive intervention, and the Legislators and superintendent (together, petitioners here) moved to purge the District Court’s contempt order in light of HB 2064. Alternatively, they moved for relief under Federal Rule of Civil Procedure 60(b)(5) based on changed circumstances.
In April 2006, the District Court denied petitioners’ motion, concluding that HB 2064 was fatally flawed in three respects. First, while HB 2064 increased ELL incremental funding by approximately $80 per student, the court held that this increase was not rationally related to effective ELL programming. Second, the court concluded that imposing a 2-year limit on funding for each ELL student was irrational. Third, according to the court, HB 2064 violated federal law by using federal funds to “supplant” rather than “supplement” state funds. No. CV-92-596-TUC-RCC, pp. 4-8 (Apr. 25, 2006), App. to Pet. for Cert. in No. 08-294, pp. 176a, 181a-182a. The court did not address petitioners’ Rule 60(b)(5) claim that changed circumstances rendered continued enforcement of the original declaratory judgment order inequitable. Petitioners appealed.
In an unpublished decision, the Court of Appeals for the Ninth Circuit vacated the District Court’s April 2006 order, the sanctions, and the imposition of fines, and remanded for an evidentiary hearing to determine whether Rule 60(b)(5) relief was warranted. Flores v. Rzeslawski,
On remand, the District Court denied petitioners’ Rule 60(b)(5) motion. Flores v. Arizona,
The Court of Appeals affirmed.
We granted certiorari,
II
Before addressing the merits of petitioners’ Rule 60(b)(5) motion, we consider the threshold issue of standing — “an essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,
We agree with the Court of Appeals that the superintendent has standing because he “is a named defendant in the case[,] the Declaratory Judgment held him to be in violation of the EEOA, and the current injunction runs against him.”
Respondents’ only argument to the contrary is that the superintendent answers to the state board of education, which in turn answers to the Governor, and that the Governor is the only Arizona official who “could have resolved the conflict within the Executive Branch by directing an appeal.” Brief for Respondent Flores et al. 22. We need not consider whether respondents’ chain-of-command argument has merit because the Governor has, in fact, directed an appeal. See App. to Reply Brief for Petitioner Superintendent 1 (“I hereby direct [the state attorney general] to file a brief at the [Supreme] Court on behalf of the State of Arizona adopting and joining in the positions taken by the Superintendent of Public Instruction, the Speaker of the Arizona House of Representatives, and the President of the Arizona Senate”).
Because the superintendent clearly has standing to challenge the lower courts’ decisions, we need not consider whether the Legislators also have standing to do so.
Ill
A
Federal Rule of Civil Procedure 60(b)(5) permits a party to obtain relief from a judgment or order if, among other things, “applying [the judgment or order] prospectively is no longer equitable.” Rule 60(b)(5) may not be used to challenge the legal conclusions on which a prior judgment or order rests, but the Rule provides a means by which a party can ask a court to modify or vacate a judgment or order if “a significant change either in factual conditions or in law” renders continued enforcement “detrimental to the public interest.” Rufo v. Inmates of Suffolk County Jail,
Rule 60(b)(5) serves a particularly important function in what we have termed “institutional reform litigation.”
Second, institutional reform injunctions often raise sensitive federalism concerns. Such litigation commonly involves areas of core state responsibility, such as public education. See Missouri v. Jenkins,
Federalism concerns are heightened when, as in these cases, a federal-court
Finally, the dynamics of institutional reform litigation differ from those of other cases. Scholars have noted that public officials sometimes consent to, or refrain from vigorously opposing, decrees that go well beyond what is required by federal law. See, e.g., McConnell, Why Hold Elections? Using Consent Decrees To Insulate Policies From Political Change, 1987 U. Chi. Legal Forum 295, 317 (noting that government officials may try to use consent decrees to “block ordinary avenues of political change” or to “sidestep political constraints”); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265, 1294-1295 (“Nominal defendants [in institutional reform cases] are sometimes happy to be sued and happier still to lose”); R. Sandler & D. Schoenbrod, Democracy by Decree: What Happens When Courts Run Government 170 (2003) (“Government officials, who always operate under fiscal and political constraints, ‘frequently win by losing’” in institutional reform litigation).
Injunctions of this sort bind state and local officials to the policy preferences of their predecessors and may thereby “improperly deprive future officials of their designated legislative and executive powers.” Frew v. Hawkins,
States and localities “depen[d] upon successor officials, both appointed and elected, to bring new insights and solutions to problems of allocating revenues and resources.” Frew, supra, at 442. Where “state and local officials . . . inherit overbroad or outdated consent decrees that limit their ability [to] respond to the priorities and concerns of their, constituents,” they are constrained in their ability to fulfill their duties as democratically elected officials. American Legislative Exchange Council, Resolution on the Federal Consent Decree Fairness Act (2006), App. to Brief for American Legislative Exchange Council et al. as Amici Curiae la-4a.
It goes without saying that federal courts must vigilantly enforce federal law and must not hesitate in awarding necessary relief. But in recognition of the features of institutional reform decrees, we have held that courts must take a “flexible approach” to Rule 60(b)(5) motions addressing such decrees. Rufo,
For these reasons, a critical question in this Rule 60(b)(5) inquiry is whether the objective of the District Court’s 2000 declaratory judgment order — i. e., satisfaction of the EEOA’s “appropriate action” standard — has been achieved. See id., at 442. If a durable remedy has been implemented, continued enforcement of the order is not only unnecessary, but improper. See Milliken, supra, at 282. We note that the EEOA itself limits court-ordered remedies to those that “are essential to correct particular denials of equal educational opportunity or equal protection of the laws.” 20 U. S. C. § 1712 (emphasis added).
B
The Court of Appeals did not engage in the Rule 60(b)(5) analysis just described. Rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied, the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns. And rather than inquiring broadly into whether changed conditions in Nogales provided evidence of an ELL program that complied with the EEOA, the Court of Appeals concerned itself only with determining whether increased ELL funding complied with the original declaratory judgment order. The court erred on both counts.
1
The Court of Appeals began its Rule 60(b)(5) discussion by citing the correct legal standard, see
Moreover, after recognizing that review of the denial of Rule 60(b)(5) relief
2
In addition to applying a Rule 60(b)(5) standard that was too strict, the Court of Appeals framed a Rule 60(b)(5) inquiry that was too narrow — one that focused almost exclusively on the sufficiency of incremental funding. In large part, this was driven by the significance the Court of Appeals attributed to petitioners’ failure to appeal the District Court’s original order. The Court of Appeals explained that “the central idea” of that order was that without sufficient ELL incremental funds, “ELL programs would necessarily be inadequate.”
In attributing such significance to the defendants’ failure to appeal the District Court’s original order, the Court of Appeals turned the risks of institutional reform litigation into reality. By confining the scope of its analysis to that of the original order, it insulated the policies embedded in the order — specifically, its incremental funding requirement— from challenge and amendment.
Instead of focusing on the failure to appeal, the Court of Appeals should have conducted the type of Rule 60(b)(5) inquiry prescribed in Rufo. This inquiry makes no reference to the presence or absence of a timely appeal. It takes the original judgment as a given and asks only whether “a significant change either in factual
The Court of Appeals purported to engage in a “changed circumstances” inquiry, but it asked only whether changed circumstances affected ELL funding and, more specifically, ELL incremental funding. Relief was appropriate, in the court’s view, only if petitioners “demonstrate[d] either that there [we]re no longer incremental costs associated with ELL programs in Arizona or that Arizona’s ‘base plus incremental costs’ educational funding model was so altered that focusing on ELL-specific incremental costs funding has become irrelevant and inequitable.”
This was a Rule 60(b)(5) “changed circumstances” inquiry in name only. In reality, it was an inquiry into whether the deficiency in ELL incremental funding that the District Court identified in 2000 had been remedied. And this, effectively, was an inquiry into whether the original order had been satisfied. Satisfaction of an earlier judgment is one of the enumerated bases for Rule 60(b)(5) relief — but it is not the only basis for such relief.
Rule 60(b)(5) permits relief from a judgment where “[i] the judgment has been satisfied, released or discharged; [ii] it is based on an earlier judgment that has been reversed or vacated; or [iii] applying it prospectively is no longer equitable.” (Emphasis added.) Use of the disjunctive “or” makes it clear that each of the provision’s three grounds for relief is independently sufficient and therefore that relief may be warranted even if petitioners have not “satisfied” the original order. As petitioners argue, they may obtain relief if prospective enforcement of that order “is no longer equitable.”
To determine the merits of this claim, the Court of Appeals needed to ascertain whether ongoing enforcement of the original order was supported by an ongoing violation of federal law (here, the EEOA). See Milliken,
As previously noted, the EEOA, while requiring a State to take “appropriate action to overcome language barriers,” 20 U. S. C. § 1703(f), “leave[s] state and local educational authorities a substantial amount of latitude in choosing” how this obligation is met. Castaneda,
C
The underlying District Court opinion reveals similar errors. In an August 2006 remand order, a different Ninth Circuit panel had instructed the District Court to hold an evidentiary hearing “regarding whether changed circumstances required modification of the original court
The District Court failed to follow these instructions. Instead of determining whether changed circumstances warranted modification of the original order, the District Court asked only whether petitioners had satisfied the original declaratory judgment order through increased incremental funding. See
D
The dissent defends the narrow approach of the lower courts with four principal conclusions that it draws from the record. All of these conclusions, however, are incorrect and mirror the fundamental error of the lower courts — a fixation on the issue of incremental funding and a failure to recognize the proper scope of a Rule 60(b)(5) inquiry.
First, the dissent concludes that “the Rule 60(b)(5) 'changes' upon which the District Court focused” were not limited to changes in funding, and included “ ‘changed teaching methods’ ” and “ ‘changed administrative systems.’ ” Post, at 483. The District Court did note a range of changed circumstances, concluding that as a result of these changes, Nogales was “doing substantially better.”
The dissent’s second conclusion is that “ ‘incremental funding’ costs . . . [were] the basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation.” Post, at 483. We fail to see this conclusion’s relevance to this Rule 60(b)(5) motion, where the question is whether any change in factual or legal circumstances renders continued enforcement of the original order inequitable. As the dissent itself acknowledges, petitioners “pointed to three sets of changed circumstances [in their Rule 60(b)(5) motion] which, in their view, showed that the judgment and the related orders were no longer necessary.” Post, at 482. In addition to “increases in the amount of funding available to Arizona school districts,” these included “changes in the method of English-learning instruction,” and “changes in the administration of the Nogales school district.” Ibid.
Third, the dissent concludes that “the type of issue upon which the District Court and Court of Appeals focused” — the incremental funding issue — “lies at the heart of the statutory demand for equal educational opportunity.” Post, at 484. In what we interpret to be a restatement of this point, the dissent also concludes that sufficient funding (“the ■resource’ issue”) and the presence or absence of an EEOA violation (“the statutory subsection (f) issue”) “are one and the same. ” Post, at 485 (emphasis in original). “In focusing upon the one,” the dissent asserts, “the District Court and Court of Appeals were focusing upon the other.” Ibid.
Contrary to the dissent’s assertion, these two issues are decidedly not “one and the same.”
Fourth, the dissent concludes that the District Court did not order increased ELL incremental funding and did not dictate state and local budget priorities. Post, at 486. The dissent’s point — and it is a very small one — is that the District Court did not set a specific amount that the legislature was required to appropriate. The District Court did, however, hold the State in contempt and impose heavy fines because the legislature did not provide sufficient funding. These orders unquestionably imposed important restrictions on the legislature’s ability to set budget priorities.
E
Because the lower courts — like the dissent — misperceived both the nature of the obligation imposed by the EEOA and the breadth of the inquiry called for under Rule 60(b)(5), these cases must be remanded for a proper examination of at least four important factual and legal changes that may warrant the granting of relief from the judgment: the State’s adoption of a new ELL instructional methodology, Congress’ enactment of NCLB, structural and management reforms in Nogales, and increased overall education funding.
1
At the time of the District Court’s original declaratory judgment order, ELL instruction in Nogales was based primarily on “bilingual education,” which teaches core content areas in a student’s native language while providing English instruction in separate language classes. In November 2000, Arizona voters passed Proposition 203, which mandated statewide implementation of a “structured English immersion” (SEI) approach. See App. to Pet. for Cert. in No. 08-294, at 369a. Proposition 203 defines this methodology as follows:
“‘Sheltered English immersion’ or ‘structured English immersion’ means an English language acquisition process for young children in which nearly all classroom instruction is in English but with the curriculum and presentation designed for children who are learning the language. . . . Although teachers may use a minimal amount of the child’s native language when necessary, no subject matter shall be taught in any language other than English, and children in this program learn to read and write solely in English.” Ariz. Rev. Stat. Ann. § 15-751(5) (West 2009).
In HB 2064, the state legislature attended to the successful and uniform implementation of SEI in a variety of ways.
Research on ELL instruction indicates there is documented, academic support for the view that SEI is significantly more effective than bilingual education.
2
Congress’ enactment of NCLB represents another potentially significant “changed circumstance.” NCLB marked a dramatic shift in federal education policy. It reflects Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. 20 U. S. C. § 6311(b)(2). NCLB conditions the continued receipt of funds on demonstrations of “adequate yearly progress.” Ibid.
As relevant here, Title III (which includes the English Language Acquisition, Language Enhancement, and Academic Achievement Act) requires States to ensure that ELL students “attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging State academic content and student academic achievement standards as all children are expected to meet.” § 6812(1). It requires States to set annual objective achievement goals for the number of students who will annually progress toward proficiency, achieve proficiency, and make “adequate yearly progress” with respect to academic achievement, § 6842(a), and it holds local schools and agencies accountable for meeting these objectives, § 6842(b).
Petitioners argue that through compliance with NCLB, the State has established compliance with the EEOA. They note that when a State adopts a compliance plan under NCLB — as the State of Arizona has — it must provide adequate assurances
The Court of Appeals concluded, and we agree, that because of significant differences in the two statutory schemes, compliance with NCLB will not necessarily constitute “appropriate action” under the EEOA.
This does not mean, however, that NCLB is not relevant to petitioners’ Rule 60(b)(5) motion. To the contrary, we think it is probative in four principal ways.
Fourth and finally, NCLB marks a shift in federal education policy. See Brief for Petitioner Speaker of the Arizona House of Representatives et al. 7-16. NCLB grants States “flexibility” to adopt ELL programs they believe are “most effective for teaching English.” §6812(9). Reflecting a growing consensus in education research that increased funding alone does not improve student achievement,
3
Structural and management reforms in Nogales constitute another relevant change in circumstances. These reforms were led by Kelt Cooper, the Nogales superintendent from 2000 to 2005, who “adopted policies that ameliorated or eliminated many of the most glaring inadequacies discussed by the district court.”
Entrenched in the framework of incremental funding, both courts refused to consider that Nogales could be taking .“appropriate action” to address language barriers even without having satisfied the original order. This was error. The EEOA seeks to provide “equal educational opportunity” to “all children enrolled in public schools.” § 1701(a). Its ultimate focus is on the quality of educational programming and services provided to students, not the amount of money-spent on them. Accordingly, there is no statutory basis for precluding petitioners from showing that Nogales has achieved EEOA-compliant programming by means other than increased funding — for example, through Cooper’s structural, curricular, and accountability-based reforms. The weight of research suggests that these types of local reforms, much more than court-imposed funding mandates, lead to improved educational opportunities.
The Court of Appeals discounted Cooper’s reforms for other reasons as well. It explained that while they “did ameliorate many of the specific examples of resource shortages that the district court identified in 2000,” they did not “result in such success as to call into serious question [No-gales’] need for increased incremental
The Court of Appeals also referred to the subpar performance of Nogales’ high schools. There is no doubt that No-gales’ high schools represent an area of weakness, but the District Court made insufficient factual findings to support a conclusion that the high schools’ problems stem from a failure to take “appropriate action,” and constitute a violation of the EEOA.
The EEOA’s “appropriate action” requirement grants States broad latitude to design, fund, and implement ELL programs that suit local needs and account for local conditions. A proper Rule 60(b)(5) inquiry should recognize this and should ask whether, as a result of structural and managerial improvements, Nogales is now providing equal educational opportunities to ELL students.
4
A fourth potentially important change is an overall increase in the education funding available in Nogales. The original declaratory judgment order noted five sources of funding that collectively financed education in the State: (1) the State’s “base level” funding, (2) ELL incremental funding, (3) federal grants, (4) regular district and county taxes, and (5) special voter-approved district and county taxes called “overrides.”
This was clear legal error. As we have noted, the EEOA’s “appropriate action” requirement does not necessarily require any particular level of funding, and
Because the lower courts engaged in an inadequate Rule 60(b)(5) analysis, and because the District Court failed to make up-to-date factual findings, the analysis of the lower courts was incomplete and inadequate with respect to all of the changed circumstances just noted. These changes are critical to a proper Rule 60(b)(5) analysis, however, as they may establish that Nogales is no longer in violation of the EEOA and, to the contrary, is taking “appropriate action” to remove language barriers in its schools. If this is the case, continued enforcement of the District Court’s original order is inequitable within the meaning of Rule 60(b)(5), and relief is warranted.
IV
We turn, finally, to the District Court’s entry of statewide relief.
This concern did not provide a valid basis for a statewide federal injunction. If the state attorney general believed that a federal injunction requiring increased ELL spending in one district necessitated, as a matter of state law, a similar increase in every other district in the State, the attorney general could have taken the matter to the state legislature or the state courts. But the attorney general did not do so. Even if she had, it is not clear what the result would have been. It is a question of state law, to be determined by state authorities, whether the equal funding provision of the Arizona Constitution would require a statewide funding increase to match Nogales’ ELL funding, or would leave Nogales as a federally compelled exception. By failing to recognize this, and by entering a statewide injunction that intruded deeply into the State’s budgetary processes based solely on the attorney general’s interpretation of state law, the District Court obscured accountability for the drastic remedy that it entered.
When it is unclear whether an onerous obligation is the work of the Federal or State Government, accountability is diminished. See New York v. United States,
There is no question that the goal of the EEOA — overcoming language barriers — is a vitally important one, and our decision will not in any way undermine efforts to achieve that goal. If petitioners are ultimately granted relief from the judgment, it will be because they have shown that the Nogales School District is doing exactly what this statute requires — taking “appropriate action” to teach English to students who grew up speaking another language.
* * *
We reverse the judgment of the Court of Appeals and remand the cases for the District Court to determine whether, in accordance with the standards set out in this opinion, petitioners should be granted relief from the judgment. .
It is so ordered.
Notes
We have previously held that Congress may validly abrogate the States’ sovereign immunity only by doing so (1) unequivocally and (2) pursuant to certain valid grants of constitutional authority. See, e. g., Kimel v. Florida Bd. of Regents,
We do not agree with the conclusion of the Court of Appeals that “the Superintendent’s standing is limited” to seeking vacatur of the District Court’s orders “only as they run against him.”
The dissent is quite wrong in contending that these are not institutional reform eases because they involve a statutory, rather than a constitutional, claim and because the orders of the District Court do not micromanage the day-to-day operation of the schools. Post, at 496 (opinion of Breyer, J.). For nearly a decade, the orders of a Federal District Court have substantially restricted the ability of the State of Arizona to make basic decisions regarding educational policy, appropriations, and budget priorities. The record strongly suggests that some state officials have welcomed the involvement of the federal court as a means of achieving appropriations objectives that could not be achieved through the ordinary democratic process. See supra, at 443. Because of these features, these cases implicate all of the unique features and risks of institutional reform litigation.
The dissent conveniently dismisses the Court of Appeals’ statements by characterizing any error that exists as “one of tone, not of law,” and by characterizing our discussion as reading them out of context. Post, at 510-511. But we do read these statements in context — in the context of the Court of Appeals’ overall treatment of petitioners’ Rule 60(b)(5) arguments — and it is apparent that they accurately reflect the Court of Appeals’ excessively narrow understanding of the role of Rule 60(b)(5).
This does not mean, as the dissent misleadingly suggests, see post, at 492-493, that we are faulting the Court of Appeals for declining to decide whether the District Court’s original order was correct in the first place. On the contrary, as we state explicitly in the paragraph following this statement, our criticism is that the Court of Appeals did not engage in the changed-circumstances inquiry prescribed by Rufo v. Inmates of Suffolk County Jail,
In addition to concluding that the law’s increase in incremental funding was insufficient and that 2-year cutoff was irrational, both the District Court and the Court of Appeals held that HB 2064’s funding mechanism violates NCLB, which provides in relevant part: “A State shall not take into consideration payments under this chapter ... in determining the eligibility of any local educational agency in that State for State aid, or the amount of State aid, with respect to free public education of children.” 20 U.S.C. §7902. See
The extent to which the dissent repeats the errors of the courts below is evident in its statement that “[t]he question here is whether the State has shown that its new funding program amounts to a ‘change’ that satisfies subsection (f)’s requirement.” Post, at 510 (emphasis added). The proper inquiry is not limited to the issue of funding. Rather, it encompasses the question whether the State has shown any factual or legal changes that establish compliance with the EEOA.
The dissent cites two sources for this proposition. The first — Castaneda v. Pickard,
The second source cited by the dissent — curiously—is a speech given by President Nixon in which he urged prompt action by Congress on legislation imposing a moratorium on new busing orders and on the Equal Educational Opportunities Act of 1972. See post, at 484 (citing Address to the Nation on Equal Educational Opportunity and Busing, 8 Weekly Comp, of Pres. Doc. 590, 591 (1972)). In the speech, President Nixon said that schools in poor neighborhoods should receive the “financial support . . . that we know can make all the difference.” Id., at 593. It is likely that this statement had nothing to do with the interpretation of the EEOA’s “appropriate action” requirement and instead referred to his proposal to “direc[t] over $2½ billion in the next year mainly towards improving the education of children from poor families.” Id., at 591. But in any event, this general statement, made in a Presidential speech two years prior to the enactment of the EEOA, surely sheds little light on the proper interpretation of the statute.
By focusing on the adequacy of HB 2064’s funding provisions, the courts below neglected to address adequately the potential relevance of these programming provisions, which became effective immediately upon enactment of the law.
See Brief for American Unity Legal Defense Fund et al. as Amici Curiae 10-12 (citing sources, including New York City Board of Education, Educational Progress of Students in Bilingual and ESL Programs: a Longitudinal Study, 1990-1994 (1994); 2 K. Torrance, Immersion Not Submersion: Lessons From Three California Districts’ Switch From Bilingual Education to Structured Immersion 4 (2006)).
See Ariz. Dept. of Ed., The Effects of Bilingual Education Programs and Structured English Immersion Programs on Student Achievement: A Large-Scale Comparison 3 (Draft July 2004) (“In the general statewide comparison of bilingual and SEI programs [in 2002-2003], those students in SEI programs significantly outperformed bilingual students in 24 out of 24 comparisons .... Though students in SEI and bilingual programs are no more than three months apart in the primary grades, bilingual students are more than a year behind their SEI counterparts in seventh and eighth grade”).
Although the dissent contends that the sole argument raised below regarding NCLB was that compliance with that Act necessarily constituted compliance with the EEOA, the Court of Appeals recognized that NCLB is a relevant factor that should be considered under Rule 60(b)(5). It acknowledged that compliance with NCLB is at least “somewhat probative” of compliance with the EEOA.
Among other things, the state department of education formulated a compliance plan, approved by the U. S. Department of Education. The state board of education promulgated statewide ELL proficiency standards, adopted uniform assessment standards, and initiated programs for monitoring school districts and training structured English immersion teachers. See
See Brief for Petitioner Superintendent 22, n. 13 (“At [Nogales], Title I monies increased from $1,644,029.00 in 2000 to $3,074,587.00 in 2006, Title II monies increased from $216,000.00 in 2000 to $466,996.00 in 2006, and Title III monies, which did not exist in 2000, increased from $261,818.00 in 2003 to $322,900.00 in 2006”).
See, e. g., App. to Pet. for Cert. in No. 08-289, pp. 310-311 (2005-2006 testing data for ELL students, reclassified ELL students, and non-ELL students on statewide achievement tests); id., at 312 (2005-2006 data regarding Nogales’ achievement of the State’s annual measurable accountability objectives for ELL students).
The Court of Appeals interpreted the testing data in the record to weigh against a finding of effective programming in Nogales. See
See, e. g., Hanushek, The Failure of Input-Based Schooling Policies, 113 Economic J. F64, F69 (Feb. 2003) (reviewing U. S. data regarding “input policies” and concluding that although such policies “have been vigorously pursued over a long period of time,” there is “no evidence that the added resources have improved student performance”); A. LeFevre, American Legislative Exchange Council, Report Card on American Education: A State-by-State Analysis 132-133 (15th ed. 2008) (concluding that spending levels alone do not explain differences in student achievement); G. Burtless, Introduction and Summary, in Does Money Matter? The Effect of School Resources on Student Achievement and Adult Success 1, 5 (1996) (noting that “[i]ncreased spending on school inputs has not led to notable gains in school performance”).
Education literature overwhelmingly supports reliance on accountability-based reforms as opposed to pure increases in spending. See, e. g., Hanushek & Raymond, Does School Accountability Lead to Improved Student Performance? 24 J. Pol’y Analysis & Mgmt. 297, 298 (2005) (concluding that “the introduction of accountability systems into a state tends to lead to larger achievement growth than would have occurred without accountability”); U. S. Chamber of Commerce, Leaders and Laggards: A State-by-State Report Card on Educational Effectiveness 6, 7-10 (Feb. 2007) (discussing various factors other than inputs — such as a focus on academic standards and accountability — that have a significant impact on student achievement); S. Fuhrman, Introduction, in Redesigning Accountability Systems for Education 1, 3-9 (S. Fuhrman & R. Elmore eds. 2004); E. Hanushek et al., Making Schools Work: Improving Performance and Controlling Costs 151-176 (1994).
See, e.g., Springer & Guthrie, Politicization of the School Finance Legal Process, in School Money Trials 102, 121 (M. West & P. Peterson eds. 2007); E. Hanushek & A. Lindseth, Schoolhouses, Courthouses, and Statehouses: Solving the Funding-Achievement Puzzle in America’s Public Schools 146 (2009).
There are many possible causes for the performance of students in Nogales’ high school ELL programs. These include the difficulty of teaching English to older students (many of whom, presumably, were not in English-speaking schools as younger students) and problems such as drug use and the prevalence of gangs. See Reply Brief for Petitioner Speaker of the Arizona House of Representatives et al. 14-15; Reply Brief for Petitioner Superintendent 16-17; App. 116-118. We’ note that no court has made particularized findings as to the effectiveness of ELL programming offered at Nogales’ high schools.
The Court of Appeals reported, and it is not disputed, that “[o]n an inflation-adjusted statewide basis, including all sources of funding, support for education has increased from $8,139 per pupil in 2000 to an estimated $3,570 per pupil in 2006; Adding in all county and local sources, funding has gone from $5,677 per pupil in 2000 to an estimated $6,412 per pupil in 2006. Finally, federal funding has increased. In 2000, the federal government provided an additional $526 per pupil; in 2006, it provided an estimated $953.”
Each year since 2000, Nogales voters have passed an override. Revenues from Nogales’ override have increased from $895,891 in 2001 to $1,674,407 in 2007. App. to Pet.,for Cert. in No. 08-294, p. 431a.
The dissent contends that this issue was not raised below, but what is important for present purposes is that, for the reasons explained in the previous parts of this opinion, these cases must be remanded to the District Court for a proper Rule 60(b)(5) analysis. Petitioners made it clear at oral argument that they wish to argue that the extension of the remedy to districts other than Nogales should be vacated. See Tr. of Oral Arg. 68 (“Here the EEOA has been transmogrified to apply statewide. That has not been done before. It should not have been done in the first instance but certainly in light of the changed circumstances”); see also id., at 17-18, 21, 26. Accordingly, if petitioners raise that argument on remand, the District Court must consider whether there is any legal or factual basis for denying that relief.
See Ariz. Dept. of Ed., Research and Evaluation Section, 2008-2009 October Enrollment by School, District and Grade 1, 17, http://www.ade.state.az.us/researchpolicy/AZEnroll/2008-2009/Octenroll2009schoolbygrade.pdf (as visited June 18, 2009, and available in Clerk of Court’s case file).
Dissenting Opinion
with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.
The Arizona Superintendent of Public Instruction, the President of the Arizona Senate, and the Speaker of the Arizona House of Representatives (the petitioners here) brought a Federal Rule of Civil Procedure 60(b)(5) motion in a Federal District Court asking the court to set aside a judgment (and accompanying orders) that the court had entered in the year 2000. The judgment held that the State of Arizona’s plan for funding its English Language
The District Court, after taking evidence and holding eight days of hearings, considered all the changed circumstances that the parties called to its attention. The court concluded that some relevant “changes” had taken place. But the court ultimately found those changes insufficient to warrant setting aside the original judgment. The Court of Appeals, in a carefully reasoned 41-page opinion, affirmed that district court determination. This Court now sets the Court of Appeals’ decision aside. And it does so, it says, because “the lower courts focused excessively on the narrow question of the adequacy of the State’s incremental funding for [English-learning] instruction instead of fairly considering the broader question, whether, as a result of important changes during the intervening years, the State was fulfilling its obligation” under the Act “by other means.” Ante, at 439 (emphasis added).
The Court reaches its ultimate conclusion — that the lower courts did not “fairly consider” the changed circumstances— in a complicated way. It begins by placing these cases in a category it calls “institutional reform litigation.” Ante, at 447. It then sets forth special “institutional reform litigation” standards applicable when courts are asked to modify judgments and decrees entered in such cases. It applies those standards, and finds that the lower courts committed error.
I disagree with the Court for several reasons. For one thing, the “institutional reform” label does not easily fit these cases. For another, the review standards the Court enunciates for “institutional reform” cases are incomplete and, insofar as the Court applies those standards here, they effectively distort Rule 60(b)(5)’s objectives. Finally, my own review of the record convinces me that the Court is wrong regardless. The lower courts did “fairly consider” every change in circumstances that the parties called to their attention. The record more than adequately supports this conclusion. In a word, I fear that the Court misapplies an inappropriate procedural framework, reaching a result that neither the record nor the law adequately supports. In doing so, it risks denying schoolchildren the English-learning instruction necessary “to overcome language barriers that impede” their “equal participation.” 20 U. S. C. § 1703(f).
I
A
To understand my disagreement with the Court, it is unfortunately necessary to examine the record at length and in detail. I must initially focus upon the Court’s basic criticism of the lower courts’ analysis, namely, that the lower courts somehow lost sight of the forest for the trees. In the majority’s view, those courts — as well as this dissent — wrongly focused upon a subsidiary matter, “incremental” English-learning program “funding,” rather than
Thus the Court writes that the lower courts focused so heavily on the original decree’s “incremental funding” requirement that they failed to ask whether “the State was fillfilling its obligation under” federal law “by other means.” Ibid. And the Court frequently criticizes the Court of Appeals for having “focused almost exclusively on the sufficiency of incremental funding,” ante, at 452; for “confining the scope of its analysis to” the “incremental funding requirement,” ante, at 453; for having “asked only whether changed circumstances affected [English-learning] funding and, more specifically . . . incremental funding,” ibid.; for inquiring only “into whether the deficiency in ... incremental funding that the District Court identified in 2000 had been remedied,” ante, at 454; and (in case the reader has not yet gotten the point) for “focusing so intensively on Arizona’s incremental... funding,” ante, at 455. The Court adds that the District Court too was wrong to have “asked only whether petitioners had satisfied the original declaratory judgment order through increased incremental funding.” Ibid.
The problem with this basic criticism is that the State’s provision of adequate resources to its English-learning students, i. e., what the Court refers to as “incremental funding,” has always been the basic contested issue in these cases. That is why the lower courts continuously focused attention directly upon it. In the context of these cases they looked directly at the forest, not the trees. To return to the school desegregation example, the court focused upon the heart of the matter, the degree of integration, and not upon the number of buses the school district had purchased. A description of the statutory context and the history of these eases makes clear that the Court cannot sensibly drive a wedge (as it wishes to do) between what it calls the “incremental funding” issue and the uncured failure to comply with the requirements of federal law.
1
The lawsuit filed in these cases charged a violation of subsection (f) of §204 of the Equal Educational Opportunities Act of 1974, 88 Stat. 515, 20 U. S. C. § 1703(f). Subsection (f) provides:
“No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin by—
“(f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”
The provision is part of a broader Act that embodies principles that President Nixon set forth in 1972, when he called upon the Nation to provide “equal educational opportunity to every person,” including the many “poor” and minority children long “doomed to inferior education” as well as those “who start their education under language handicaps.” See Address to the Nation on Equal Educational Opportunity and Busing, 8 Weekly Comp, of Pres. Doc. 590, 591 (emphasis added) (hereinafter Nixon Address).
2
In 1981, in Castaneda v. Pickard,
The court concluded that a court applying subsection (f) should engage in three inquiries. First, the court should “ascertain” whether the school system, in respect to students who are not yet proficient in English, “is pursuing” an English-learning program that is “informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy.” Ibid. Second, that court should determine “whether the programs and practices actually used by [the] school system are reasonably calculated to implement effectively the educational theory adopted by the school,” which is to say that the school system must “follow through with practices, resources and personnel necessary to transform” its chosen educational theory “into reality.” Id., at 1010 (emphasis added). Third, if practices, resources, and personnel are adequate, the court should go on to ascertain whether there is some indication that the programs produce “results,” i. e., that “the language barriers confronting students are actually being overcome.” Ibid.
Courts in other Circuits have followed Castaneda’s approach. See, e. g., Gomez v. Illinois State Bd. of Educ.,
3
The plaintiffs in these cases are a class of English language learner students, i. e., students with limited proficiency in English, who are enrolled in the school district in Nogales, a small city along the Mexican border in Arizona in which the vast majority of students come from homes where Spanish is the primary language. In 1992, they filed the present lawsuit against the State of Arizona, its board of education, and the superintendent, claiming that the State had violated subsection (f), not by failing to adopt proper English-learning programs, but by failing “to provide financial and other resources necessary” to make those programs a practical reality for Spanish-speaking students. App. 7, ¶20 (emphasis added); see Castaneda, supra, at 1010 (second, i. e., “resource,” requirement). In particular, they said, “[t]he cost” of programs that would allow those students to learn effectively, say, to read English at a
The students sought a declaration that the State had “systematically . . . failed or refused to provide fiscal as well as other resources sufficient to enable” the Nogales Unified School District and other “similarly situated [school] districts” to “establish and maintain” successful programs for English learners. Id., at 10, ¶ 28. And they sought an appropriate injunction requiring the provision of such resources. The state defendants answered the complaint. And after resolving disagreements on various subsidiary issues, see id., at 19-30, the parties proceeded to trial on the remaining disputed issue in the case, namely, whether the State and its education authorities “adequately fund and oversee” their English-learning program. Flores v. Arizona,
In January 2000, after a 3-day bench trial, the District Court made 64 specific factual findings, including the following:
(1) The State assumes that its school districts need (and will obtain from local and statewide sources) funding equal to a designated “base level amount” per child — reflecting the funding required to educate a “typical” student, Flores v. Arizona,
(2) In the year 2000, the “base level amount” the State assumed necessary to educate a typical child amounted to roughly $3,174 (in year 2000 dollars). Id., at 1227.
(3) A cost study conducted by the State in 1988 showed that, at that time, English-learning programming cost school districts an additional $424 per English-learning child. Id., at 1228. Adjusted for inflation to the year 2000, the extra cost per student of the State’s English-learning program was $617 per English-learning child.
(4) In the year 2000, the State’s funding formula provided school districts with only $150 to pay for the $617 in extra costs per child that the State assumed were needed to pay for its English-learning program. Id., at 1229.
The record contains no suggestion that Nogales, or any other school district, could readily turn anywhere but to the State to find the $467 per-student difference between the amount the State assumed was needed and the amount that it made available. See id., at 1230. Nor does the record contain any suggestion that Nogales or any other school district could have covered additional costs by redistributing “base level,” typical-child funding it received. (In the year 2000, Arizona, compared with other States, provided the third-lowest amount of funding per child. U. S. Dept. of Education, Institute of Education Sciences, National Center for Education Statistics, T. Snyder, S. Dillow, & C. Hoffman, Digest of Education Statistics 2008, Ch. 2, Revenues and Expenditures, Table 184, http://nces.ed.gov/pubs2009/2009020.pdf (hereinafter 2008 Digest) (all Internet materials as visited June 28, 2009, and available in Clerk of Court’s case file).)
Based on these and related findings, the District Court concluded that the State’s method of paying for the additional costs associated with English-learning education was “arbitrary and capricious and [bore] no relation to the actual funding needed.”
The District Court consequently entered judgment in the students’ favor. The court later entered injunctions (1) requiring the State to “prepare a cost study to establish the proper appropriation to effectively implement” the State’s own English-learning program, and (2) requiring the State to develop a funding mechanism that would bear some “reasonably]” or “rational relatio[n] to the actual funding needed” to ensure that non-English-speaking students would “achieve mastery” of the English language. See, e. g., Flores v. Arizona,
The State neither appealed nor complied with the 2000 declaratory judgment or any of the injunctive orders. When, during the next few years, the State failed to produce either a study of the type ordered or a funding program rationally related to need for financial resources, the court imposed a series of fines upon the State designed to lead the State to comply with its orders. Flores v. Arizona,
In early 2006, the state legislature began to consider HB 2064, a bill that, among other things, provided for the creation of a “Task Force” charged to develop “cost-efficient” methods for teaching English. The bill would also increase the appropriation for teaching English to students who needed to learn it (though it prohibited the spending of any increase upon any particular student for more than two years). In March 2006, the petitioners here (the Arizona Superintendent of Public Instruction, the President of Arizona’s Senate, and the Speaker of its House of Representatives) asked the District Court (1) to consider whether HB 2064, as enacted, would satisfy its judgment and injunctive orders, (2) to forgive the contempt fine liability that the State had accrued, and (3) to dissolve the injunctive orders and grant relief from the 2000 judgment. Motion of Intervenors To Purge Contempt, Dissolve Injunctions, Declare the Judgment and Orders Satisfied, and Set Aside Injunctions as Void in No. CV-92-596-TUC-RCC (D. Ariz., Mar. 24, 2006), Dkt. No. 422, pp. 1-2 (hereinafter Motion To Purge).
The dissolution request, brought under Rule 60(b)(5), sought relief in light of changed circumstances. The “significant changed circumstances” identified amounted to changes in the very circumstances that underlay the initial finding of violation, namely, Arizona’s funding-based failure to provide adequate English-learning educational resources. The moving parties asserted that “Arizona has poured money” into Nogales as a result of various funding changes, id, at 5. They pointed to a 0.6% addition to the state sales tax; to the dedication of a portion of the State’s share of Indian gaming proceeds to Arizona school districts; to the increase in federal funding since 2001; and to HB 2064’s increase in state-provided funding. Id, at 5-8. The parties said that, in light of these “dramatic” additions to the funding available for education in Arizona, the court should “declare the judgment and orders satisfied, and ... relieve defendants from the judgment and orders under Rule 60(b)(5).” Id., at 8.
In April 2006, the District Court held that HB 2064 by itself did not adequately satisfy the court’s orders; it denied the request to forgive the fines; but it did not decide the petitioners’ Rule 60(b)(5) motion.
In January 2007, the District Court held a hearing that lasted eight days and produced an evidentiary transcript of 1,684 pages. The hearing focused on the changes that the petitioners said had occurred and justified setting aside the original judgment. The petitioners pointed to three sets of changed circumstances — all related to “practices, resources, and personnel” — which, in their view, showed that the judgment and the related orders were no longer necessary. They argued that the changes had brought the State into compliance with the Act’s requirements. The three sets of changes consisted of (1) increases in the amount of funding available to Arizona school districts; (2) changes in the method of English-learning instruction; and (3) changes in the administration of . the Nogales school district. These changes, the petitioners said, had cured the resource-linked deficiencies that were noted in the District Court’s 2000 judgment,
Based on the hearing and the briefs, the District Court again found that HB 2064 by itself did not cure the “resource” problem; it found that all of the changes, resource-related and otherwise, including the new teaching and administrative methods, taken together, were not sufficient to warrant setting aside the judgment or the injunctive orders; and it denied the Rule 60(b)(5) motion for relief. Flores v. Arizona,
B
Five conclusions follow from the description of these cases I have just set forth. First, the Rule 60(b)(5) “changes” upon which the District Court focused included the “changed teaching methods” and the “changed administrative systems” that the Court criticizes the District Court for ignoring. Compare ante, at 459-461, 465-467, with Parts III-A, III-C, infra. Those changes were, in the petitioners’ view, related to the “funding” issue, for those changes reduced the need for increased funding. See Motion To Purge 7. I concede that the majority of the District Court’s factual findings focused on funding, see ante, at 455-456. But where is the legal error, given that the opinion clearly shows that the District Court considered, “Tocus[ed]’” upon, and wrote about all the matters the petitioners raised? Ante, at 456-457;
Second, the District Court and the Court of Appeals focused more heavily upon “incremental funding” costs, see ante, at 452-456, for the reason that the State’s provision for those costs — i. e., its provision of the resources necessary to run an adequate English-learning program — was the basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation.
Third, the type of issue upon which the District Court and Court of Appeals focused lies at the heart of the statutory demand for equal educational opportunity. A State’s failure to provide the “practices, resources and personnel necessary” to eliminate the educational burden that accompanies a child’s inability to speak English is precisely what the statute forbids. See Castaneda, supra, at 1010 (emphasizing the importance of providing “resources”); Nixon Address 593 (referring to the importance of providing “financial support”). And no one in these cases suggests there is no need for those resources, e. g., that there are no extra costs associated with English-learning education irrespective of the teaching method used. English-learning students, after all, not only require the instruction in “academic content areas” like math and science that “typical” students require, but they also need to increase their proficiency in speaking, reading, and writing English. This language-acquisition instruction requires particular textbooks and other instructional materials, teachers trained in the school’s chosen method for teaching English, special assessment tests, and tutoring and other individualized instruction — all of which resources cost money. Brief for Tucson Unified School District et al. as Amici Curiae 10-13; Structured English Immersion Models of the Arizona English Language Learners Task Force, http://www.ade.state.az.us/ELLTaskForce/2008/SEIModels 05-14-08.pdf (describing Arizona’s requirement that English-learning students receive four hours of language-acquisition instruction per day from specially trained teachers using designated English-learning materials); Imazeki, Assessing the Costs of Adequacy in California Public Schools, 3 Educ. Fin. & Pol’y 90, 100 (2008) (estimating that English-learning students require 74% more resources than typical students). That is why the petitioners, opposed as they are to the District Court’s judgment and orders, admitted to the District Court that English learners “need extra help and that costs extra money.” See
Fourth, the “resource” issue that the District Court focused upon when it decided the Rule 60(b)(5) motion and the statutory subsection (f) issue that lies at the heart of the court’s original judgment (and the plaintiffs’ original complaint) are not different issues, as the Court claims. See ante, at 457-459. Rather, in all essential respects they are one and the same issue. In focusing upon the one, the District Court and Court of Appeals were focusing upon the other. For all practical purposes, changes that would have proved sufficient to show the statutory violation cured would have proved sufficient to warrant setting aside the original judgment and decrees, and vice versa. And in context, judges and parties alike were fully aware of the modification/ violation relationship. See, e. g., Intervenor-Defendants’ Closing Argument Memorandum, No. CV-92-596-TUC-RCC (D. Ariz., Mar. 13,2007), Dkt. No. 631, p. 1 (arguing that factual changes had led to “satisfaction]” of the judgment).
Fifth, the Court is wrong when it suggests that the District Court ordered “increased incremental funding,” ante, at 455; when it faults the District Court for effectively “dictating state or local budget priorities,” ante, at 448; when it claims that state officials welcomed the result “as a means of achieving appropriations objectives,” ante, at 447, n. 3; and when it implies that the District Court’s orders required the State to provide a “particular level of funding,” ante, at 469. The District Court ordered the State to produce a plan that set forth a “reasonable” or “rational” relationship between the needs of English-learning students and the resources provided to them. The orders expressed no view about what kind of English-learning program the State should use. Nor did the orders say anything about the amount of “appropriations” that the State must provide, ante, at 447, n. 3, or about any “particular funding mechanism,” ante, at 455, that the State was obligated to create. Rather, the District Court left it up to the State “to recommend [to the legislature] the level of funding necessary to support the programs that it determined to be the most effective.”
II
Part I shows that there is nothing suspicious or unusual or unlawful about the lower courts having focused primarily upon changes related to the resources Arizona would devote to English-learning education (while also taking account of all the changes the petitioners raised). Thus the Court’s basic criticism of the lower court decisions is without foundation. I turn next to the Court’s discussion of the standards of review the Court finds applicable to “institutional reform” litigation.
To understand my concern about the Court’s discussion of standards, it is important to keep in mind the well-known standards that ordinarily govern the evaluation of Rule 60(b)(5) motions. The Rule by its terms permits modification of a judgment or order (1) when “the judgment has been satisfied,” (2) “released,” or (3) “discharged”; when the judgment or order (4) “is based on an earlier judgment that has been reversed or vacated”; or (5) “applying [the judgment] prospectively is no longer equitable.” No one can claim that the second, third, or fourth grounds are applicable here. The relevant judgment and orders have not been released or discharged; nor is there any relevant earlier judgment that has been reversed or vacated. Thus the only Rule 60(b)(5) questions are whether the judgment and orders have been satisfied, or, if not, whether their continued application is “equitable.” And, as I have explained, in context these come down to the same question: Is continued enforcement inequitable because the defendants have satisfied the 2000 declaratory
To show sufficient inequity to warrant Rule 60(b)(5) relief, a party must show that “a significant change either in factual conditions or in law” renders continued enforcement of the judgment or order “detrimental to the public interest.” Rufo,
The Court acknowledges, as do I, as did the lower courts, that Rufo’s “flexible standard” for relief applies. The Court also acknowledges, as do I, as did the lower courts, that this “flexible standard” does not itself define the inquiry a court passing on a Rule 60(b)(5) motion must make. To give content to this standard, the Court refers to Milliken v. Bradley,
Taking these cases and considerations together, the majority says the critical question for the lower courts is “whether ongoing enforcement of the original order was supported by ah ongoing violation of federal law (here [subsection (f)]).” Ante, at 454. If not — i e., if a current violation of féderal law cannot be detected — then “ ‘responsibility for discharging the State’s obligations [must be] returned promptly to the State.’” Ante, at 452.
One problem with the Court’s discussion of its standards is that insofar as the considerations it mentions are widely accepted, the lower courts fully acknowledged and followed them. The decisions below, like most Rule 60(b)(5) decisions, reflect the basic factors the Court mentions. The lower court opinions indicate an awareness of the fact that equitable decrees are subject to a “flexible standard” permitting modification when circumstances, factual or legal, change significantly.
Nor is the decree at issue here a “consent decree” as that term is normally understood in the institutional litigation context. See ante, at 447-450. The State did consent to a few peripheral matters that have nothing to do with the present appeal. App. 19-30. But the State vigorously contested the plaintiffs’ basic original claim, namely, that the State failed to take resource-related “appropriate action” within the terms of subsection (f). The State presented proofs and evidence to the District Court designed to show that no violation of federal law had occurred, and it opposed entry of the original judgment and every subsequent injunctive order, save the relief sought by the petitioners here. I can find no evidence, beyond the Court’s speculation, showing that some state officials have “welcomed” the District Court’s decision “as a means of achieving appropriations objectives that could not [otherwise] be achieved.” Ante, at 447, n. 3. But even were that so, why would such a fact matter here more than in any other case in which some state employees believe a litigant who sues the State is right? I concede that the State did not appeal the District Court’s original order or the ensuing injunctions. But the fact that litigants refrain from appealing does not turn a litigated judgment into a “consent decree.” At. least, I have never before heard that term so used.
Regardless, the Court’s discussion of standards raises a far more serious problem. In addition to the standards I have discussed, supra, at 487-488, our precedents recognize other, here outcome-determinative, hornbook principles that apply when a court evaluates a Rule 60(b)(5) motion. The Court omits some of them. It mentions but fails to apply others. As a result, I am uncertain, and perhaps others will be uncertain, whether the Court has set forth a correct and workable method for analyzing a Rule 60(b)(5) motion.
First, a basic principle of law that the Court does not mention — a principle applicable in these cases as in others — is that, in the absence of special circumstances (e. g., plain error), a judge need not consider issues or factors that the parties themselves do not raise. That principle of law is longstanding, it is reflected in Blackstone, and it perhaps comes from yet an earlier age. 3 Commentaries on the Laws of England 455 (1768) (“[I]t is a practice unknown to our law,” when examining the decree of an inferior court, “to examine the justice of the . . . decree by evidence that was never produced below”); Clements v. Macheboeuf,
Third, the Court ignores the well-established distinction between a Rule 60(b)(5) request to modify an order and a request to set an unsatisfied judgment entirely aside— a distinction that this Court has previously emphasized. Cf. Rufo, supra, at 389, n. 12 (emphasizing that “we do not have before us the question whether the entire decree should be vacated”). Courts normally do the latter only if the “party” seeking “to have” the “decree set aside entirely” shows “that the decree has served its purpose, and there is no longer any need for the injunction.” 12 J. Moore et al., Moore’s Federal Practice §60.47[2][e] (3d ed. 2009) (hereinafter Moore). Instead of applying the distinction, the majority says that the Court of Appeals “strayed” when it referred to situations in which changes justified setting an unsatisfied judgment entirely aside as “‘likely rare.’” Ante, at 451.
Fourth, the Court says nothing about the well-established principle that a party moving under Rule 60(b)(5) for relief that amounts to having a “decree set aside entirely” must show both (1) that the decree’s objects have been “attained,” Frew,
Fifth, the majority mentions, but fails to apply, the basic Rule 60(b)(5) principle that a party cannot dispute the legal conclusions of the judgment from which relief is sought. A party cannot use a Rule 60(b)(5) motion as a substitute for an appeal, say, by attacking the legal reasoning underlying the original judgment or by trying to show that the facts, as they were originally, did not then justify the order’s issuance. Browder v. Director, Dept. of Corrections of III.,
Here, the original judgment rested upon a finding that the State had failed to provide Nogales with adequate funding “resources,” Castaneda,
Sixth, the Court mentions, but fails to apply, the well-settled legal principle that appellate courts, including this Court, review district court denials of Rule 60(b) motions (of the kind before us) for abuse of discretion. See Browder, supra, at 263, n. 7; Railway Employees, supra, at 648-650. A reviewing court must not substitute its judgment for that of the district court. See National Hockey League v. Metropolitan Hockey Club, Inc.,
I have just described Rule 60(b)(5) standards that concern (1) the obligation (of lack of obligation) upon a court to take account of considerations the parties do not raise; (2) burdens of proof; (3) the distinction between setting aside and modifying a judgment; (4) the need to show that a decree’s basic objectives have been attained; (5) the importance of not requiring relitigation of previously litigated matters; and (6) abuse of discretion review. Does the Court intend to ignore one or
If so, the Court will find no support for its approach in the cases to which it refers, namely, Rufo, Milliken, and Frew. Rufo involved a motion to modify a complex court-monitor-supervised decree designed to prevent overcrowding in a local jail. The Court stressed the fact that the modification did not involve setting aside the entire decree.
Frew addressed the question whether the Eleventh Amendment permits a federal district court to enforce a consent decree against state officials seeking to bring the State into compliance with federal law.
What of Milliken? Milliken involved direct review (rather than a motion for relief) of a district court’s order requiring the Detroit school system to implement a host of remedial programs, including counseling and special reading instruction, aimed at schoolchildren previously required to attend segregated schools.
These cases confirm the unfortunate fact that the Court has failed fully to apply the six essential principles that I have mentioned. If the Court does not intend any such modifications of these traditional standards, then, as I shall show, it must affirm the Court of Appeals’ decision. But if it does intend to modify them, as stated or in application, it now applies a new set of new rules that are not faithful to our cases and which will create the dangerous possibility that orders, judgments, and decrees long final or acquiesced in, will be unwarrantedly subject to perpetual challenge, offering the defendants unjustifiable opportunities endlessly to relitigate underlying violations with the burden of proof imposed once again upon the plaintiffs.
I recognize that the Court’s decision, to a degree, reflects one side of a scholarly debate about how courts should properly handle decrees in “institutional reform litigation.” Compare, in general, R. Sandler & D. Schoenbrod, Democracy by Decree: What Happens When Courts Run Government (2003), with, e. g., Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L. Rev. 1281, 1307-1309 (1976). But
These cases do not involve schools, prisons, or mental hospitals that have failed to meet basic constitutional standards. See, e. g., Dowell,
As I have said, supra, at 487-489, the framework that I have just described, filling in those principles the Court neglects, is precisely the framework that the lower courts applied.
Ill
If the Court’s criticism of the lower courts cannot rest upon what they did do, namely, examine directly whether Arizona had produced a rational funding program, it must rest upon what it believes they did not do, namely, adequately consider the other changes in English-learning instruction, administration, and the like to which the petitioners referred. Indeed, the Court must believe this, for it orders the lower courts, on remand, to conduct a “proper examination” of “four important factual and legal changes that may warrant the granting of relief from the judgment:” (1) the “adoption of a new... instructional methodology” for teaching English; (2) “Congress’ enactment” of the No Child Left Behind Act of 2001, codified in Title 20; (3) “structural and management reforms in Nogales,” and (4) “increased overall education funding.” Ante, at 459.
The Court cannot accurately hold, however, that the lower courts failed to conduct
A
The first “change” that the Court says the lower courts must properly “examin[e]” consists of the “change” of instructional methodology, from a method of “bilingual education” (teaching at least some classes in Spanish, while providing separate instruction in English) to a method of “ ‘structured English immersion’” (teaching all or nearly all classes in English but with a specially designed curriculum and materials). Ante, at 459-461. How can the majority suggest that the lower courts failed properly to “examine” this matter?
First, more than 2 days of the District Court’s 8-day evidentiary hearing were devoted to precisely this matter, namely, the claim pressed below by the petitioners that “[t]he adoption of English Immersion” constitutes a “substantial advancemen[t] in assisting” English learners “to become English proficient.” Hearing Memorandum in No. CV-92-596-TUC-RCC (D. Ariz., Jan. 4, 2007), Dkt. No. 588, pp. 4-5. The State’s director of English acquisition, Irene Moreno, described the new method as “the most effective” way to teach English. Tr. 19 (Jan. 9, 2007). An educational consultant, Rosalie Porter, agreed. Id., at 95-96. The petitioners’ witnesses also described a new assessment test, the Arizona English Language Learner Assessment, id., at 50-51; they described new curricular models that would systematize instructional methods, id., at 78; they explained that all teachers would eventually be required to obtain an “endorsement” demonstrating their expertise in the chosen instructional method, see Proposed Findings of Fact and Conclusions of Law in No. CV-92-596-TUC-RCC (D. Ariz., Jan 4, 2007), Dkt. No. 593, p. 7; and they pointed to data showing that the percentage of Nogales’ English learners successfully completing the program had recently jumped from 1% of such students in 2004 to 35% in 2006, App. to Pet. for Cert. in No. 08-289, p. 309.
The District Court in its opinion, referring to the several days of hearings, recognized the advances and acknowledged that the State had formulated new systems with new “standards, norms and oversight for Arizona’s public schools and students with regard to” English-learning programs.
But, at the same time, the District Court noted that “many of the new standards are still evolving.”
Perhaps the majority does not mean to suggest that the lower courts failed properly to examine these changes in teaching methods. Perhaps it means to express its belief that the lower courts reached the wrong conclusion. After all, the Court refers to a “documented, academic support for the view that” structured English immersion “is significantly more effective than bilingual education.” Ante, at 460-461.
It is difficult to see how the majority can substitute its judgment for the District Court’s judgment on this question, however, for that judgment includes a host of subsidiary fact-related determinations that warrant deference. Railway Employees,
The methodological change was introduced in Arizona in late 2000, and in Nogales it was a work in progress, “[t]o one degree or another,” as of June 2005. Tr. 10 (Jan. 12, 2007); ante, at 459-461. As of 2006, the State’s newest structured English immersion models had not yet taken effect. Tr. 138 (Jan. 17, 2007) (“We’re getting ready to hopefully put down some models for districts to choose from”). The State had adopted its new assessment test only the previous year. App. 164-165. The testimony about the extent to which Nogales had adopted the new teaching system was unclear and conflicting. Compare Tr. 96 (Jan. 9, 2007) with id., at 10 (Jan. 12, 2007). And, most importantly, there was evidence that the optimistic improvement in the number of students completing the English-learning program was considerably overstated. See id., at 37 (Jan. 18, 2007) (stating that the assessment test used in 2005 and 2006, when dramatic improvements had been reported, was significantly less “rigorous” and consequently had been replaced). The State’s own witnesses were unable firmly to conclude that the new system had so far produced significantly improved results. Id., at 112-113 (Jan. 11, 2007) (stating that “at some point” it would be possible to tell how quickly the new system leads to English proficiency (emphasis added)).
Faced with this conflicting evidence, the District Court concluded that it was “premature” to dissolve the decree on the basis of changes in teaching (and related standards and assessment) methodology. Given the underlying factual disputes (about, e. g., the reliability of the testing method), how can this Court now hold that the District Court and the appellate court that affirmed its conclusions were legally wrong?
B
The second change that the Court says the lower courts should properly “examine” is the “enactment” of the No Child Left Behind Act. Ante, at 461. The Court concedes, however, that both courts did address the only argument about that “enactment” that the petitioners made, namely, that “compliance” with that new law automatically constitutes compliance with subsection (f)’s “ ‘appropriate action’ ” requirement. Ante, at 462; see also, e. g., App. 73 (arguing that the new law “preempts” subsection (f)). And the Court today agrees (as do I) that the lower
Instead, the Court suggests that the lower courts wrongly failed to take account of four other ways in which the new Act is “probative,” namely, (1) its prompting “significant structural and programming” changes, (2) its increases in “federal funding,” (3) “its assessment and reporting requirements,” and (4) its “shift in federal education policy.” Ante, at 463-464. In fact, the lower courts did take account of the changes in structure, programming, and funding (including federal funding) relevant to the English-learning program in Nogales and elsewhere in the State. See Part III-A, supra; Parts III-C and III-D, infra. But, I agree with the Court that the District Court did not explicitly relate its discussion to the new Act nor did it take account of what the majority calls a “shift in federal education policy.” Ante, at 464.
The District Court failed to do what the Court now demands for one simple reason. No one (with the possible exception of the legislators, who hint at the matter in their reply brief filed in this Court) has ever argued that the District Court should take account of any such “change.” But see ante, at 463, and n. 12.
As I have explained, see supra, at 490-491, it is well established that a district court rarely commits legal error when it fails to take account of a “change” that no one called to its attention or fails to reply to an argument that no one made. See, e. g., Dowell,
That is not surprising, since the lower courts have consistently and explicitly held that “flexibility cannot be used to relieve the moving party of its burden to establish that” dissolution is warranted. Thompson v. United States Dept. of Housing and Urban Development,
C
The third “change” that the Court suggests the lower courts failed properly to “examine” consists of “Structural and management reforms in Nogales.” Ante, at 465. Again, the Court cannot mean that the lower courts failed to “examine” these arguments, for the District Court heard extensive evidence on the matter. The Court itself refers to some (but only some) of the evidence introduced on this point, namely, the testimony of Kelt Cooper, the former No-gales district superintendent, who said that his administrative
Rather, the Court claims that the lower courts improperly “discounted” this evidence. Ante, at 466. But what does the Court mean by “discount”? It cannot mean that the lower courts failed to take account of the possibility that these changes “might have brought Nogales[’]” program into “compliance” with subsection (f). After all, that is precisely what the petitioners below argued. Intervenor-Defendants’ Closing Argument Memorandum in No. CV-92-596-TUC-RCC (D. Ariz., Mar. 13, 2007), Dkt. No. 631, pp. 7-18. Instead the Court must mean that the lower courts should have given significantly more weight to the changes, i. e., the Court disagrees with the lower courts’ conclusion about the likely effect these changes will have on the success of No-gales’ English-learning programs (hence, on the need for the judgment and orders to remain in effect).
It is difficult to understand the legal basis for the Court’s disagreement about this fact-related matter. The evidence before the District Court was mixed. It consisted of some evidence showing administrative reform and managerial improvement in Nogales. Ante, at 465-466. At the same time other evidence, to which the Court does not refer, shows that these reforms did not come close to curing the problem. The record shows, for example, that the graduation rate in 2005 for English-learning students (59%) was significantly below the average for all students (75%). App. 195. It shows poor performance by English-learning students, compared with English-speaking students, on Arizona’s content-based standardized tests. See Appendix A, infra. This was particularly true at Nogales’ sole high school — which Arizona ranked 575th out of its 629 schools on an educational department survey,
The record also contains testimony from Guillermo Zamudio, who in 2005 succeeded Cooper as Nogales’ superintendent, and who described numerous relevant “resource-related” deficiencies: Lack of funding meant that Nogales had to rely upon long-term substitute and “emergency certified” teachers without necessary training and experience. Tr. 45 (Jan. 18, 2007). Nogales needed additional funding to hire trained teachers’ aides — a “strong component” of its English-learning program, id., at 47. And Nogales’ funding needs forced it to pay a starting base salary to its teachers about 14% below the state average, making it difficult to recruit qualified teachers. Id., at 48. Finally, Zamudio said that Nogales’ lack of resources would likely lead in the near future to the cancellation of certain programs, including a remedial reading program, id., at 56, and would prevent the school district from providing appropriate class sizes and tutoring, which he characterized as “essential and necessary for us to be able to have our students learn English,” id., at 75-78.
The District Court, faced with all this evidence, found the management and structural “change” insufficient to warrant dissolution of its decree. How can the Court say that this conclusion is unreasonable? What is the legal basis for concluding
In fact, the Court does not even try to claim that the District Court’s conclusion is unreasonable. Rather, it enigmatically says that the District Court made “insufficient factual findings” to support the conclusion that an ongoing violation of law exists. Ante, at 468. By “insufficient,” the Court does not mean nonexistent. See
At one point the Court says that there “are many possible causes” of Nogales’ difficulties and that the lower courts failed to “take into account other variables that may explain” the ongoing deficiencies. Ante, at 467, 468, n. 20. But to find a flaw here is to claim that the plaintiffs have failed to negate the possibility that these other causes, not the State’s resource failures, explain Nogales’ poor performance. To say this is to ignore well-established law that accords deference to the District Court’s fact-related judgments. See supra, at 493-494. The Court’s statements reflect the acknowledgment that the evidence below was mixed. Given that acknowledgment, it is clear that the District Court did not abuse its discretion in finding that the. petitioners had not shown sufficient “changed circumstances.” And it was the petitioners’ job, as the moving party, to show that compliance with federal law has been achieved. Where “other variables” make it difficult to conclude that a present violation does or does not exist, what error does the District Court commit if it concludes that the moving party has failed to satisfy that burden?
D
The fourth “change” that the Court suggests the lower courts did not properly “examine” consists of an “overall increase in the education funding available in Nogales.” Ante, at 468. Again, the Court is wrong to suggest that the District Court failed fully to examine the matter, for despite the Court’s assertions to the contrary, it made a number of “up-to-date factual findings,” ante, at 469, on the matter, see
Once again the Court’s “factual-finding” criticism seems, in context, to indicate its disagreement with the lower courts’ resolution of this argument. That is to say, the Court seems to disagree with the District Court’s conclusion that, even with the new funding, the State failed to show that adequate resources for English-learning programs would likely be forthcoming; hence the new plan was not “rationally related” to the underlying resource problem.
The record, however, adequately supports the District Court’s conclusion. For
How is that conclusion unreasonable? If these funds are provided for the provision of only basic services, how can the majority now decide that a school district — particularly a poor school district like Nogales — would be able to cover the additional expenses associated with English-learning education while simultaneously managing to provide for its students’ basic educational needs? Indeed, the idea is particularly impractical when applied to a district like Nogales, which has a high percentage of students who need extra resources. See
For another thing, the petitioners’ witnesses conceded that the State had not yet determined the likely costs to school districts of teaching English learners using the structured English immersion method. See, e. g., Tr. 199-200 (Jan. 17, 2007). The legislators reported that the State had recently asked a task force to “determine” the extra costs associated with implementing the structured English immersion model. Speaker’s Opening Appellate Brief in No. 07-15603 etc. (CA9), p. 31. But that task force had not yet concluded its work.
Further, the District Court doubted that the federal portion of the funding identified by the petitioners would be available for English-learning programs. It characterized certain federal grant money, included in the petitioners’ calculus of available funds, as providing only “short-term” assistance,
Finally, the court pointed to federal law, which imposes a restriction forbidding the State to use a large portion of (what the State’s plan considered to be) available funds in the manner the State proposed, i. e., to “supplant,” or substitute for, the funds the State would otherwise have spent on the program. Id., at 1162; see also 20 U. S. C. §§ 6314(a)(2)(B), 6315(b)(3), 6613(f), 6825(g). The District Court concluded that the State’s funding plan was in large part unworkable in light of this restriction. In reaching this conclusion, the District Court relied in part upon the testimony of Thomas Fagan, a former United States Department of Education employee and an “expert” on this type of federal funding. Fagan testified that Arizona’s plan was a “ ‘blatant violation’ ” of the relevant laws, which could result in a loss to the State of over $600 million in federal
The Court says that the analysis I have just described, and in which the court engaged, amounts to “clear legal error.” Ante, at 469. What error? Where is the error? The Court does say earlier in its opinion that the lower courts “should not” have “disregarded” the relevant federal (i. e., No Child Left Behind Act) funds “just because they are not state funds.” Ante, at 463. But the District Court did not disregard those funds “just because they are not state funds.” Nor did it “foreclos[e] the possibility that petitioners could” show entitlement to relief by pointing to “an overall increase in education funding.” Ante, at 469. Rather, the District Court treated those increased funds as potentially unavailable, primarily because their use as planned would violate federal law and would thereby threaten the State with total loss of the stream of federal funding it planned to use. It concluded that the State’s plan amounted to “ ‘a blatant violation’ ” of federal law, and remarked that “the potential loss of federal funds is substantial.”
The Court may have other “errors” in mind as well. It does say, earlier in its opinion, that some believe that “increased funding alone does not improve student achievement,” ante, at 464 (emphasis added), and it refers to nine studies that suggest that increased funding does not always help, see ante, at 464-465,. 467, nn. 17-19; see also Brief for Educational-Policy Scholars as Amici Curiae 7-11 (discussing such scholarship). I do not know what this has to do with the matter. But if it is relevant to today’s decision, the Court should also refer to the many studies that cast doubt upon the results of the studies it cites. See, e. g., H. Ladd & J. Hansen, Making Money Matter: Financing America’s Schools 140-147 (1999); Hess, Understanding Achievement (and Other) Changes Under Chicago School Reform, 21 Educ. Eval. & Pol’y Analysis 67, 78 (1999); Card & Payne, School Finance Reform, The Distribution of School Spending, and the Distribution of Student Test Scores, 83 J. Pub. Econ. 49, 67 (2002); see also Rebell, Poverty, “Meaningful” Educational Opportunity, and the Necessary Role of. the Courts, 85 N. C. L. Rev. 1467, 1480 (2007); R. Greenwald, L. Hedges, & R. Laine, The Effect of School Resources on Student Achievement, 66 Rev. Educ. Res. 361, 362 (1996).
Regardless, the relation of a funding plan to improved performance is not an issue for this Court to decide through footnote references to the writings of one side of a complex expert debate. The question here is whether the State has shown that its new funding program amounts to a “change” that satisfies subsection (f)’s requirement. The District Court found it did not. Nothing this Court says casts doubt on the legal validity of that conclusion.
IV
The Court’s remaining criticisms are not well founded. The Court, for example, criticizes the Court of Appeals for having referred to the “circumstances” that “warrant Rule 60(b)(5) relief as ‘likely rare,’ ” for having said the petitioners would have to ‘‘sweep away” the District Court’s “funding determination” in order to prevail, for having spoken of the “landscape” as not being “so radically changed as to justify relief from judgment without compliance,” and for having somewhat diminished the “close[ness]” of its review for “federalism concerns” because the State and its board of education “wish the injunction
. The Court, however, does not explain the context in which the Court of Appeals’ statements appeared. That court used its first phrase (“likely rare”) to refer to the particular kind of modification that the State sought, namely, complete relief from the original judgment, even if the judgment’s objective was not yet fully achieved.
Nor do I see any legal error that could have made a difference when the Court of Appeals said it should downplay the importance of federalism concerns because some elements of Arizona’s state government support the judgment. I do not know the legal basis for the majority’s reference to this recalibration of judicial distance as “flatly incorrect,” but, if it is wrong, I still do not see how recalibrating the recalibration could matter.
In sum, the majority’s decision to set aside the lower court decisions rests upon (1) a mistaken effort to drive a wedge between (a) review of funding plan changes and (b) review of changes that would bring the State into compliance with federal law, Part I, supra; (2) a misguided attempt to show that the lower courts applied the wrong legal standards, Part II, supra; (3) a mistaken belief that the lower courts made four specific fact-based errors, Part III, supra; and (4) a handful of minor criticisms, Part IV, supra and this page. By tracing each of these criticisms to its source in the record, I have tried to show that each is unjustified. Whether taken separately or together, they cannot warrant setting aside the Court of Appeals’ decision.
V
As a totally separate matter, the Court says it is “unclear” whether the District Court improperly ordered statewide injunctive relief instead of confining that relief to Nogales. And it orders the District Court to vacate the injunction “insofar as it extends beyond Nogales” unless the court finds that “Arizona is violating” subsection (f) “on a statewide basis.” Ante, at 472.
What is the legal support for this part of the majority’s opinion? Prior to the appearance of these cases in this Court, no one asked for that modification. Nothing in the law, as far as I know, makes the relief somehow clearly erroneous. Indeed, as the majority recognizes, the reason that the injunction runs statewide is that the State of Arizona, the defendant in the litigation, asked the Court to enter that relief. The State pointed in support to a state constitutional provision requiring educational uniformity. See ante, at 471. There is no indication that anyone disputed whether the injunction should have statewide scope. A statewide program harmed Nogales’ students, App. 13-14, ¶¶40, 42; and the State wanted statewide
The majority says that the District Court must consider this matter because the “ [petitioners made it clear at oral argument that they wish to argue that the extension of the remedy to districts other than Nogales should be vacated.” Ante, at 470, n. 23. I find the matter less clear. I would direct the reader to the oral argument transcript, which reads in part:
“MR. STARR: . . . What was entered here in this order, which makes it so extraordinary, is that the entire State funding mechanism has been interfered with by the order. This case started out in Nogales....
“JUSTICE SCALIA: Well, I — I agree with that. I think it was a vast mistake to extend a lawsuit that applied only to Nogales to the whole State, but the State attorney general wanted that done.
“MR. STARR: But we should be able now to—
“JUSTICE SCALIA: But that’s — that’s water over the dam. That’s not what this suit is about now.” Tr. of Oral Arg. 26.
Regardless, what is the legal basis for the Court’s order telling the District Court it must reconsider the matter? There is no clear error. No one has asked the District Court for modification. And the scope of relief is primarily a question for the District Court. Swann v. Charlotte-Mecklenburg Bd. of Ed.,
VI
As the length of the opinions indicates, these cases require us to read a highly detailed record. Members of this Court have reached different conclusions about what that record says. But there is more to the case than that.
First, even if one sees these cases as simply a technical record-reading case, the disagreement among us shows why this Court should ordinarily hesitate to hear cases that require us to do no more than to review a lengthy record simply to determine whether a lower court’s fact-based determinations are correct. Cf. Universal Camera,
Second, insofar as the Court goes beyond the technical record-based aspects of these cases and applies a new review framework, it risks problems in future cases. The framework it applies is incomplete and lacks clear legal support or explanation. And it will be difficult for lower courts to understand and to apply that framework, particularly if it rests on a distinction between “institutional reform litigation” and other forms of litigation. Does the Court mean to say, for example, that courts must, on their own, go beyond a party’s
Third, the Court may mean its opinion to express an attitude, cautioning judges to take care when the enforcement of federal statutes will impose significant financial burdens upon States. An attitude, however, is not a rule of law. Nor does any such attitude point toward vacating the Court of Appeals’ opinion here. The record makes clear that the District Court did take care. See supra, at 486. And the Court of Appeals too proceeded with care, producing a detailed opinion that is both true to the record and fair to the lower court and to the parties’ submissions as well. I do not see how this Court can now require lower court judges to take yet greater care, to proceed with even greater caution, while at the same time expecting those courts to enforce the statute as Congress intended.
Finally, we cannot and should not fail to acknowledge the underlying subject matter of this proceeding. These cases concern the rights of Spanish-speaking students, attending public school near the Mexican border, to learn English in order to live their lives in a country where English is the predominant language. In a Nation where nearly 47 million people (18% of the population) speak a language other than English at home, U. S. Dept. of Commerce, Economics and Statistics Admin., Census Bureau, Census 2000 Brief: Language Use and English-Speaking Ability 2 (Oct. 2003), it is important to ensure that those children, without losing the cultural heritage embodied in the language of their birth, nonetheless receive the English-language tools they need to participate in a society where that second language “serves as the fundamental medium of social interaction” and democratic participation. Rodriguez, Language and Participation, 94 Cal. L. Rev. 687, 693 (2006). In that way linguistic diversity can complement and support, rather than undermine, our democratic institutions. Id., at 688.
At least, that is what Congress decided when it set federal standards that state officials must meet. In doing so, without denying the importance of the role of state and local officials, it also created a role for federal judges, including judges who must see that the States comply with those federal standards. Unfortunately, for reasons I have set forth, see Part II, supra, the Court’s opinion will make it more difficult for federal courts to enforce those federal standards. Three decades ago, Congress put this statutory provision in place to ensure that our Nation’s school systems will help non-English-speaking schoolchildren overcome the language barriers that might hinder their participation in our country’s schools, workplaces, and the institutions of everyday politics and government, i. e., the “arenas through which most citizens live their daily lives.” Rodriguez, supra, at 694. I fear that the Court’s decision will increase the difficulty of overcoming barriers that threaten to divide us.
For the reasons set forth in this opinion, I respectfully dissent.
APPENDIXES
PERFORMANCE ON CONTENT-BASED ASSESSMENT TESTS — SPRING 2006
MATH
GRADE ELL STUDENTS PASSING EXAM NON-ELL AND RECLASSIFIED STUDENTS PASSING EXAM
3 54% 94%
4 44% 91%
5 58% 88%
6 23% 82%
7 40% 82%
8 28% 70%
READING
GRADE ELL STUDENTS PASSING EXAM NON-ELL AND RECLASSIFIED STUDENTS PASSING EXAM
3 40% 92%
4 19% 83%
5 22% 81%
6 14% 76%
7 13% 74%
8 31% 73%
WRITING
GRADE ELL STUDENTS PASSING EXAM NON-ELL AND RECLASSIFIED STUDENTS PASSING EXAM
3 52% _82%_
4 52% _87%_
5 34% _80%_
6 71% _97%_
7 66% _98%_
8 49% _ _94%_
B
FUNDING AVAILABLE TO NOGALES UNIFIED SCHOOL DISTRICT, PER STUDENT
TYPE 1999-2000 2000-2001 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007
Base level $2,592 $2,618 $2,721 $2,788 $2,858 $2,929 $3,039 $3,173
ELL funds $156 $157 $163 $321 $329 $337 $349 $365
Other state ELL funds $0 $0 $0 $126 $64 $0 $74
Federal Title I funds $439 $448 $467 $449 $487 $638
Federal Title II funds $63 $74 $101 $109 $91 $92 $87
Federal Title III (ELL) funds $0 $0 $0 $67 $89 $114 $118 $121
State and federal grants $58 $56 $59 $47 $207 $214 $205 $109
TOTAL
Constant dollars (2006)
Total ELL funds $156 $157 $163 $514 $501 $515 $467 $639
App. to Pet. for Cert, in No. 08-289, p. 311.
Nogales received less per-pupil funding in 2006 than the average provided by every State in the Nation. New Jersey provided the highest, at $14,954; Arizona the third-lowest, at $6,515. 2008 Digest.
As of 2007, county override funds provided an additional $43.43 per student. See
Constant dollars based on the Consumer Price Index.