Horne v. Flores

HORNE, SUPERINTENDENT, ARIZONA PUBLIC

INSTRUCTION FLORES v. et al. CERTIORARI TO THE UNITED OF STATES COURT APPEALS FOR

THE NINTH CIRCUIT Argued April No. 08-289. 2009 Decided June 2009* *Together 08-294, Speaker Repre- with No. House the Arizona al., et al. v. et on to the same court. sentatives Flores also certiorari

Alito, J., opinion delivered the Court, Roberts, J., in which C. Scalia., Kennedy, and Thomas, JJ., and joined. Breyer, J., filed a dis- opinion, senting in which Stevens, Souter, Ginsburg, JJ., joined, and post, p. 472. Kenneth W.Starr argued cause for in petitioners both cases. With him on the briefs for petitioners in No. 08-294 Ashley C.Parrish, Richmond, Rick were A. Haskins, Steven David J. Cantelme, David Brown, Aaron and Paul R. Neil. Daryl Eric Bistrow, J. Dulberg Manhart, and Michael S. filed briefs petitioner No. 08-289.

Sri Srinivasan argued the cause for respondents both cases. With him on the brief for respondents Miriam Flores Irving Ryan L. Gornstein, et al. were Scott, W. Walter Dellinger, Timothy Hogan, Joy M. E. Herr-Cardillo. Terry Goddard, Mary General Attorney Arizona, O'Grady, Segal, Solicitor General, Susan P. Assistant Attor- McKirgan, H. Robert Kasten, ney General, Lawrence A. Kimberly Anne Demarchi filed brief for respondents State of Arizona et inal. both cases. Saharsky

Nicole A. the cause for argued the United States as amicus curiae supporting respondents both cases. Acting Katyal, Solicitor General her With on the brief were Acting Attorneys King, Deputy Assistant General Hertz Solicitor Kneedler, General Mark B. Stern, Dennis Dim- J. H. and Susan E. Miller, Rosenfelt, Philip M. Angela

sey, † Craig. of the Court. Alito delivered opinion

Justice from began cases arise litigation These consolidated in 1992 when language-learner in Arizona group English (No- District (ELL) in the School students Unified Nogales that the action, their filed class parents alleging and gales) Educational Act violating Opportunities was the Equal State § U. S. C. 204(f), 1703(f), § 88 Stat. (EEOA), for the eases were filed urging † Briefs reversal both of amici curiae O’Brien, Jr., by C. Exchange et al. Robert Legislative Council American Legal Unity for the American Phillips, Cooper; E. and Seth L. Jonathan Education-Policy by Scholars Zall; Barnaby by et al. for Defense Fund W. Educa Eagle Forum Stephen Shapiro; M. for Dan and Himmelfarb J. Schlafly and Lawrence Fund, Inc., by L. Legal Andrew tion & Defense Browne, L. Ste by Sharon Legal Pacific Foundation et al. Joseph; for the Reitz; Washington Legal Gieseler, J. and for the Geoffrey and Michael ven Friedman, Popeo, J. Schaerr, J. Daniel by Gene C. Michael Foundation Sandler, Samp, and David S. Schoenbrod. A. Ross Richard Foundation Legal States filed a brief for the Mountain J. Detamore Scott urging 08-289. as amicus curiae reversal No. filed for both eases were urging affirmance in curiae Briefs amici Gilbert, M. by Richard Center et al. Alan S. American Justice Asian Narasaki, Eng; and A. Evans, K. Vincent Zuckerman, J. Karen Katherine by et al. Rob and Fund Legal American Defense Education

for the Asian Kwong, Jr., Stanley Young, L. and Kenneth Kimer Long, Deanna ert A. Sen, Perales, John Rights Organizations by Diana ling; Nina for Civil by L. Scholars Jonathan Policy Educational and Finance Affeldt; T. for Fund, Inc., et al. Marcus; Legal & Educational Defense for NAACP Berrien, Adegbile, P. Anurima Payton, Jacqueline A. Debo by John Civin; Thomas, School Holly Joshua National A Bhargava, Jr., Gittins, Negron, Naomi by M. Association et al. Francisco Boards Borkowski, Sneed, Hutton, Soronen, F. John W. Maree Thomas Lisa Ellsworth; C. by et al. John Unified School District for the Tucson Jessica Rights Lawyers’ for Civil Richardson; Washington Committee and for the Project et Refugee Rights al. Pat Immigrant and and Urban Affairs— rick F. Linehan. of Education Phinney Recognized for 30 Leaders

A III filed a brief W. both curiae in eases. Research as amici requires appropriate which a State “to take action to over- language equal impede participation by come barriers that programs.” its students its instructional In 2000, the Dis- declaratory judgment respect trict Court entered a with Nogales, apply and in court extended the order to eight years, petitioners to the entire State. Over next repeatedly sought relief from the District Court’s but orders, granted Ap- to no avail. We certiorari after the Court of peals for petitioners’ Circuit Ninth affirmed the denial of motion for relief under Federal Rule of Procedure Civil 60(b)(5), judgment and we now reverse the of the Court of Appeals and proceedings. remand for further explain,

As we Ap- the District Court and the Court of peals obligation misunderstood both the that the im- EEOA poses on inquiry States required and the nature of the that is parties petitioners when such as seek relief under Rule 60(b)(5) ground on the judgment that enforcement of a is “no longer equitable.” Both of the lower courts exces- focused sively question on the adequacy narrow of the State’s incremental fairly for ELL instruction instead considering question the broader whether, as a of im- result portant changes during years, intervening the State was fulfilling obligation by its under the EEOA other means. question at issue in these cases whether Arizona “appropriate must language take action” to overcome the impede barriers ELL students. Of course it must. petitioners argue fulfilling But that Arizona is now its statu- tory obligation by policy insights new means that reflect new 60(b)(5) changed provides and other circumstances. Rule petitioners argument. bring vehicle for such an I A program group In 1992,a of students in the ELL enrolled Nogales parents (plaintiffs) and their in the Dis- filed suit trict the District of Arizona on behalf of “all minor- English proficient

ity . . now children . and limited ‘at risk’ Nogales [the] School District enrolled in Unified hereafter, or guardians.” parents v. Ari- Flores as their . . as well . (2000). sought Supp. 2d Plaintiffs 172 F. zona, declaratory holding judgment Arizona, that the State of its superintendent public instruc- education, and its board of (defendants) violating providing the EEOA in- were tion Nogales.1 adequate in ELL instruction portion EEOA states: relevant opportunity deny equal to educational “No State shall or race, color, sex, his her of or on account an individual by— origin, national ap-

“(f) agency take by to an educational failure language that barriers propriate to overcome action in its instruc- impede equal participation students its added). (emphasis §1703 programs.” C. 20 U. S. tional appropriate to By requiring action simply “to take a State particular specifying language without barriers” overcome “Congress to leave intended take, that State must actions amount a substantial authorities local educational state and they techniques programs choosing the of latitude 1 abrogate the may validly Congress previously that We have held (1) unequivocally only by doing so sovereign immunity States’ g., e. (2) See, authority. grants to certain valid of constitutional pursuant (2000). respect to 62, Regents, S. 73 With v. Florida Bd. U. Kimel 528 of to pursuant statutes enacted requirement, we have held that the second remedy “congru is provide a § must 5 the Fourteenth Amendment of intended to address. Congress proportional” injury to the ent and City (1997). Flores, Prior to City 507, 520 Boerne v. 521 U. S. See of of EEOA, Boerne, Circuit held Appeals for the Ninth the Court of Amendment, 20 § see 5 the Fourteenth pursuant enacted of which was immunity. sovereign (b), 1702(a)(1), validly abrogates §§ the States’ U. C.S. Dish, School Angeles v. Los Angeles Los Branch NAACP See Unified Arizona, 1140, F. 3d see also Flores (1983); v. 516 946, 714 F. 2d 950-951 NAACP). Angeles (CA9 2008) That issue on Los (relying n. not before us these cases. obligations use to meet

would their under EEOA.” Cas- (CA5 1981). Pickard, v. F. 2d 989, taneda August years pretrial proceedings seven In after of regarding settling after various claims the structure monitoring Nogales’ curriculum, ELL the evaluation and tutoring Nogales’ provision and the students, and other compensatory parties proceeded instruction, the In trial. January 2000, the District Court concluded that defendants violating funding were the EEOA because the amount of (ELL special State ELL allocated for the needs students funding) arbitrary incremental was and not related to actual needed cover the of ELL costs instruction Nogales. Supp. 172 F. 2d, at 1239. Defendants did appeal the District Court’s order.

B years following, In the the District Court entered a series injunctions. of additional orders and In October 2000, “prepare court study ordered the State a cost to establish proper appropriation effectively the implement” to ELL programs. Supp. Flores Arizona, v. 160 2d 1043, F. 1047. applied declaratory In judgment 2001, June the court the granted injunctive accordingly. order statewide and relief (June CIV. No. 92-596TUCACM, 2001 *2 1028369, 25, WL 2001). step though The court took this even the certified only Nogales parents class included students and and even though any the court did find that districts than other Nogales were in violation the The court set a EEOA. January funding provide deadline of 31,2002, for the to State funding “bear[s] relationship a the rational to actual needed.” Ibid. January days “ap- gave

In the court the 90 to 2005, State constitutionally propriately pro- fun[d] the state’s ELL grams taking previous [Rule’s] orders.” into account p. App. 92-596-TUC-ACM, 5, CIV. State No. 2005, the court deadline, failed meet this and in December contempt. Although legislature held the was State party legis- suit, not then a to the the court ordered that “the days beginning after the lature has calendar the 2006 legislative comply January session to 28,2005 with Everyday that the order. thereafter ... fails to com- State imposed ply [fines] with this will be until the Order, State Supp. compliance.” Arizona, v. 1112, Flores F. 2d imposed that the court 1120. The schedule of fines escalated day. per Id., at 1120-1121. from to million $500,000 $2 C any appeal or- District Court’s Defendants did not sup- suggests some officials state ders, and the record 2001,the state ported In June their continued enforcement. attorney general acquiesced extension in the statewide step declaratory has judgment that the State order, a require- explained by constitutional Arizona reference funding. for Brief ment school See of uniform statewide (CA9), Appellee et in No. 07-15603 etc. of Arizona al. State 1(A)). hearing § p. (citing At a Const., 11, Ariz. Art. superin- opposed February attorney general a 2006, new stay request im- 2005 order a of the December tendent’s proposed posing distribution fines, sanctions filed of the accrued fines. accruing in fines, the

In million $20 March after over designed legislature passed state which was HB prob- funding implement permanent solution Among other lems in 2000. identified the District Court (with things, HB 2064 increased ELL incremental 2-year funding) per-student two on and created limit such English a com- immersion fund and new structured funds—a pensatory costs of ELL additional fund—to cover instruction newly programming. Moneys funds were in both created moneys. by insti- HB 2064 also federal be offset available changes. programming tuted and structural several funding provi approve of HB 2064’s did not The Governor without her to become law allowed the bill sions, but she signature. in incremental ELL HB 2064’s Because required approval effective, the court to become Gov crease attorney requested general the to move for accelerated ernor doing so, In she ex the District Court. consideration “ meetings plained: three vetoes, nine months ‘After of judge. I am con this matter to federal is time to take expe getting court now the most vinced this bill into way ultimately bring compliance ditious the into state with federal Arizona, law.’” Flores v. 3d 1140, 1153, F. (CA9 2008). joined n. 16 state board education the opposing Together, Governor in HB state 2064. the board plaintiffs the education, State of Arizona, and the are re spondents here. principal siding

With the defendants the action with the plaintiffs, Speaker Representatives the of the State House of and the (Legislators) President of the State Senate filed a representatives motion respective to intervene as of their legislative App. support bodies. In their motion, they although attorney general “legal stated that the had a duty” attorney general defend HB had shown advancing legislature’s “little enthusiasm” for interests. Among Legislators Id., things, at 57. other noted that attorney general appeal judg- take “failed to an of the ment appeal entered this case in 2000 and has failed to any injunctions and other orders issued in aid judgment.” granted Id., at 60. The District Court Legislators’ permissive motion for intervention, and here) Legislators superintendent (together, petitioners purge contempt light moved to the District order in Court’s Alternatively, they of HB 2064. moved for relief under Fed- 60(b)(5) changed eral Rule on of Civil Procedure based circumstances. April petitioners’

In mo- District Court denied concluding fatally that HB was tion, flawed three 444

respects. ELL incremental while HB 2064increased First, per funding by approximately the court held student, $80 rationally effective ELL not related to that this increase was imposing programming. that Second, the court concluded 2-year funding irrational. limit on for each ELL student was according law HB 2064 violated federal Third, court, “supple by using “supplant” rather than federal funds to pp. 4-8 CV-92-596-TUC-RCC, ment” state funds. No. pp. 25, 2006), (Apr. App. 08-294, 176a, for No. to Pet. Cert. petitioners’ Rule address court 181a-182a. The did 60(b)(5) changed contin rendered circumstances claim that declaratory judgment order original ued enforcement of the appealed. inequitable. Petitioners Appeals for the unpublished the Court decision, In an April order, 2006 the District Court’s Circuit vacated Ninth remanded imposition fines, and sanctions, and the 60(b)(5) hearing Rule evidentiary whether to determine an Appx. 204 Fed. Rzeslawski, Flores v. relief warranted. was (2006). petitioners’ Rule the District Court denied remand, On 60(b)(5) Supp. 1157, 2d F. Arizona, v. motion. Flores (Ariz. 2007). Holding establish did not HB 2064 that rationally available funding system relates “a that instruction,” id., of ELL of all elements the actual costs legislative gave the end until the court State 1165, failed to do comply The State with its orders. session to contempt. again held the State so, District (Oct. 2007), App. Peti- 86. 92-596 TUC-RCC No. CV appealed. tioners It ac- Appeals 3d 516 F. affirmed.

The Court of significant since Nogales strides knowledged “made had progress did but concluded 2000,” id., 60(b)(5) Emphasizing that Rule relief. Rule not warrant 60(b)(5) timely appeal, character- for a not a substitute centering declaratory judgment original order izing the funding, the Court adequacy ELL incremental on Appeals explained appropriate only be if relief would petitioners longer shown “either that there are no incre- had programs mental costs ELL in associated with Arizona” or that Arizona its Id., had altered model. at 1169. Appeals petitioners The Court of concluded that had made rejected showing, petitioners’ argu- neither and it other including Congress’ ments, claim that enactment (NCLB), Act of Child Left Behind 2001 115 1425, Stat. No. § changed legal 20 6842, codified Title U. S. C. a constituted 60(b)(5) circumstance that warranted Rule relief. granted (2009), certiorari,

We 555 U. S. 1092 and now reverse.

II addressing 60(b)(5) petitioners’ Before the merits of Rule motion, we standing consider the threshold issue of es-—“an unchanging part sential and case-or-controversy re- quirement Lujan of Article III.” v. Wildlife, Defenders of (1992). 504 standing, plaintiff 555, U. S. 560 To establish a present injury must particularized, an concrete, is fairly actual or imminent; to traceable the defendant’s chal- lenged ruling. action; and Id., redressable a favorable standing inquiries, at 560-561. Here, as in all the critical question petitioner “alleged is whether at one least has such personal controversy stake in the outcome of the to war- jurisdiction.” rant his invocation of federal-court Summers (2009) (quoting v. Earth Island 555 Institute, U. 493 S. (1975); quotation v. Warth 422 Seldin, U. 498 internal S. omitted). marks agree superintend Appeals

We with the that the standing ent has he in the because “is a named defendant Declaratory Judgment case[,] in violation held him to be injunction against of the EEOA, and the current runs him.” (citation omitted). F. For these reasons alleged sufficiently “‘personal he alone, has stake ” controversy’ support standing. Warth, outcome to supra, Sweeney, 914 F. 2d 498; see also v. United States (CA9 1990) (rejecting argu- 1260, 1263 as “frivolous” the “standing object party ment does not have to or- directing taking specifically it to ders take or refrain from action”). argument only contrary

Respondents’ to the is that the superintendent to the state of education, answers board Governor, and that the which in turn answers Gover- only Arizona officialwho “could have nor resolved by directing appeal.” Branch an the Executive conflict within Respondent et al. 22. We need consider Brief for Flores argument respondents’ has merit chain-of-command whether appeal. fact, an directed See has, because the Governor (“I Superintendent App. Reply Brief for Petitioner attorney hereby general] [the file a brief state direct [Supreme] of Arizona the the on behalf of State at Superin- by joining positions adopting the in the taken and Speaker the Arizona Instruction, of tendent of Public Representatives, of the Arizona the President House of Senate”). standing clearly superintendent chal- has Because lenge not consider courts’ need decisions, the lower we standing See, Legislators do so.2 have whether the also Housing e.g., Arlington Heights Metropolitan Devel- v. (1977)(“[W]e opment Corp., have 9 264, 429 U. S. and n. 252, plaintiff stand- has demonstrated at least one individual who plaintiff, ing need presence we of this of .... Because corporate not consider whether the other individual 2 “the Appeals that agree of Court of not the conclusion We do with the District seeking Superintendent’s standing is limited” to vacatur Had 3d, at 1165. they against 516 F. “only Court’s as run him.” orders judgment, superintendent sought based on satisfaction relief as dis might correct. But Appeals’ have been the Court conclusion 60(b)(5) not based on satis claim is infra, petitioners’ cussed Rule enforcement is continued judgment. claim that faction of the Their implicates This claim inequitable. be the District Court’s orders would against they run entirety, solely in their the orders superintendent. suit”). standing Accordingly,

plaintiffs have to maintain the 60(b)(5) petitioners’ proceed the merits of Rule motion. we Ill A 60(b)(5) permits party Federal Rule of Civil Procedure a judgment among a to obtain relief from or order other if, judgment [the order] things, “applying prospectively or is no 60(b)(5) longer equitable.” may not Rule be used to chal- lenge legal prior judgment a conclusions on which or provides order party rests, but the Rule a means which a modify judgment can ask a court to or vacate a or if order significant change “a either in factual conditions or in law” renders public continued enforcement “detrimental to the in- County terest.” v. Inmates Jail, 502 U. S. Rufo of Suffolk (1992). party seeking 367, 384 relief bears burden establishing changed circumstances warrant relief, party id., at 383, but once carries this burden, court modify injunction abuses its discretion “when it refuses to an light changes,” Agostini or consent decree in of such Fel- v. (1997). ton, U. S. 60(b)(5) particularly important

Rule serves function in what litigation.”3 we have termed “institutional reform supra, thing, injunctions Rufo, For one issued in quite wrong The dissent contending these are not institu they tional reform statutory, eases because involve a rather than a consti tutional, claim and because the of orders the District Court do not micro Post, the manage day-to-day operation (opinion of schools. at 496 J.). Breyer, nearly decade, For a the a orders of Federal District Court substantially ability have restricted the of State of the Arizona to make regarding policy, budget basic decisions appropriations, educational priorities. strongly suggests The record that some state officials have welcomed the of achieving involvement the federal court as a of means appropriations objectives ordinary through that could not be achieved supra, process. features, democratic See of 443. Because these these implicate unique of cases all features and risks institutional reform litigation.

448 many years, for remain in force cases often

such brings changed passage frequently about circum- of time underlying problem, changes nature of stances— interpretation governing by changes law or the courts, its policy insights warrant reexamination and new —that original judgment. injunctions reform often raise

Second, institutional sensi litigation commonly tive concerns. Such involves federalism public responsibility, such as education. of core state areas (1995)(“[O]ur S. cases Jenkins, 515 U. See Missouri v. autonomy a recognize school districts is vital that local a court strive that district must tradition, and national to the control of school state and local authorities restore (cita compliance system operating in with the Constitution” Lopez, omitted)); 549, 580 v. 514 U. S. United States tion (1995) concurring). J., (Kennedy, heightened in these when, as are Federalism concerns dictating state has effect federal-court decree cases, governments priorities. budget local or local States and court funds. federal orders have When a limited program, money appropriated the effect is often be one programs. away important See to take from other funds (“A concurring) supra, struc- J., Jenkins, (Thomas, discretionary au- reform decree eviscerates State’s tural budgets thority program and forces state over its own funds”). officials to reallocate resources and state litigation Finally, dynamics reform dif- of institutional pub- cases. have noted fer from those of other Scholars vigorously from to, lic consent or refrain officials sometimes go beyond required opposing, what decrees that well Why e.g., McConnell, Elections? See, federal law. Hold Using Political To Policies From Consent Decrees Insulate (noting gov- Change, Legal Forum U. Chi. may try to consent decrees to “block ernment officials use “sidestep political ordinary change” political or to avenues of Change: constraints”); Decreeing Organizational Horowitz, Supervision Institutions, 1983 Duke L. J. Public Judicial (“Nominal [in 1294-1295 defendants institutional re- happier cases] happy and still form are sometimes be sued lose”); Democracy by Schoenbrod, R. & D. Decree: Sandler (2003) Happens What Courts Run Government 170 When (“Government always operate officials, who under fiscal and political ‘frequently by losing’” win in constraints, institu- litigation). tional reform

Injunctions of sort state local to the this bind and officials policy preferences predecessors may thereby their and “improperly deprive designated legis- future officialsof their powers.” lative and executive Hawkins, Frew v. 540 U. S. (2004). 431, 441 See also Northwest Environment Advo- (CA9 2003) cates (Kleinfeld, EPA, v. 340 F. 3d 853, 855 J., dissenting) (noting present that consent decrees a risk of col- advocacy lusion groups between and executive officials who want policymakers); to bind Ragsdale the hands of future (CA7 1991) Turnock, v. (Flaum, 941 F. 2d 501, 517 J., concur- ring (“[I]t part part) dissenting and is not uncommon for consent to be decrees entered into on terms favorable governmental challenging to those action because rifts bureaucracy within leg- or between the executive branches”); islative Easterbrook, Justice and Contract (“To- Judgments, Legal Consent 1987 U. Chi. Forum may today’s wrong, morrow’s officeholder conclude that why embedding regulation and there is no reason in a reexamination”). consent decree should immunize from “depen[d] upon States and localities officials, successor appointed bring insights both elected, new and solu- problems allocating tions to revenues and resources.” supra, Frew, at 442. Where “state local officials . . . inherit overbroad or outdated consent decrees that limit ability [to] respond priorities their to the and concerns of their, they ability constituents,” are in their constrained democratically fulfill their duties as Ameri- elected officials. Legislative Exchange Council, can on Federal Resolution (2006),App. Act Brief Ameri- Consent Decree Fairness for Legislative Exchange can et Council al. as Amici Curiae la-4a. goes saying vigilantly that

It without federal courts must awarding enforce law must not neces- federal hesitate sary recognition But the features institu- relief. of of take a tional reform we have held that courts must decrees, 60(b)(5) addressing approach” “flexible motions such to Rule approach decrees. at A allows S.,U. 381. flexible Rufo, “responsibility discharging the courts ensure that obligations promptly and its to the State State’s returned supra, Frew, at officials”when circumstances warrant. applying approach, remain must In flexible courts 442. this ap- exceed decrees attentive to the fact that “federal-court eliminating propriate they a condition if are at limits aimed law] such [federal flow from or does not that does not violate (1977). Bradley, 267, 282 a 433 U. S. violation.” Milliken v. [a is] to reasonable “If consent not limited federal decree may “improp- necessary implementations law,” of federal legislative erly deprive designated future officials of their powers.” at 441. Frew, S., and executive 540 U. 60(b)(5) question Rule critical in this reasons,

For these a objective inquiry Court’s of District is whether declaratory judgment of the EEOA’s e., order—i. satisfaction “appropriate id., achieved. See action” been standard —has implemented, remedy con- 442. has been If durable unnecessary, only the order is not tinued enforcement of supra, improper. We note Milliken, but See to those remedies the EEOA itself limits court-ordered particular equal edu- of “are to correct denials essential equal protection opportunity the laws.” of cational or added). § (emphasis C. 1712 U. S.

B 60(b)(5) engage Appeals the Rule did not Court applying analysis just a flexible than described. Rather control to state and that seeks to return local offi- standard law remedied, as violation federal has been cials soon Appeals heightened paid used standard that the Court insufficient attention to federalism concerns. And rather inquiring broadly changed into whether than conditions in Nogales program provided complied of an evidence ELL Appeals only EEOA, itself with concerned determining funding complied ELL with whether increased original declaratory judgment with the order. The court erred on both counts. 60(b)(5) Appeals began by Court of its Rule discussion

citing (not- legal the correct standard, see 516 F. 3d, at 1163 ing appropriate upon that showing sig- relief is of “‘a change nificant ”), either in factual law’ conditions or in but quickly strayed. It referred to the situations in which changed 60(b)(5) “likely circumstances warrant Rule relief as explained rare,” id, at that, to succeed on these grounds, petitioners showing would have to make con- Nogales changed away” ditions in “sweep had so as to District Court’s incremental determination, id, at Appeals 1168. The of Court concluded that the District determining landscape had Court not erred in that “the was radically changed justify judgment not so as to relief from added).4 compliance.” (emphasis Id., without at 1172 recognizing after Moreover, that review of the denial of 60(b)(5) generally Rule relief should “somewhat be closer in injunctions against of the context institutional states ‘due Appeals incorrectly to federalism of concerns,’” conveniently The dissent Appeals’ dismisses the Court of statements by characterizing any tone, law,” error that exists of by as “one not of Post, characterizing reading out our discussion them of context. 510-511. But do read these we statements context —in context 60(b)(5) Appeals’ petitioners’ of Rule of Court of overall treatment arguments apparent they accurately it is reflect Court of —and 60(b)(5). Appeals’ excessively understanding narrow role Rule substantially are les-

reasoned that “federalism concerns of Arizona and the state Board of sened as the state here, injunction place.” Id., to remain in Education wish the flatly respond- incorrect, statement as even 1164. This Respondent acknowledge. for Arizona ents Brief State of Precisely et state have al. 20-21. because different actors contrary positions litigation, this con- taken federalism precisely are federalism con- cerns elevated. And because 60(b)(5) heightened, approach to Rule cerns are a flexible “[Wjhen objects the decree have relief is critical. compliance namely, been has EEOA been when attained” — obliga- “responsibility discharging the State’s achieved— [must be] promptly its offi- to the State tions returned supra, Frew, cials.” at 442. 60(b)(5) applying was

In standard addition Rule 60(b)(5) Appeals in- strict, too a Rule the Court of framed quiry almost exclu- focused that was too narrow—one that funding. large sively sufficiency In on the of incremental Ap- significance part, the Court this was driven appeal peals petitioners’ District the to failure to attributed explained original Appeals The Court’s order. Court that without sufficient “the central idea” of that order was necessarily programs ELL “ELL would funds, incremental inadequate.” It at 1167-1168. felt bound be 516 F. “reopen petitioners matters it to conclusion, this lest allow ap- Declaratory Judgment not was the made final when throughout pealed.” repeated refrain Id., at 1170. It this “ finality opinion, emphasizing must in that the ‘interest its explaining given great weight,’” id., at be grounds that petitioners “on not ask for relief could now Declaratory Judg- appeal raised from the could have on been injunctive id., not,” but were ment and from earlier orders [petitioners] court the district 1167. “If believed that funding sources differ- at all erred and have looked should ently inquiry,” “they wrote, in its EEOA the court should Declaratory Judgment.” appealed Id., have the at 1171. attributing significance In such the defendants’ failure appeal original order, the District the Court of Court’s Appeals litigation turned the risks institutional reform reality. By scope analysis confining into the of its to that of original policies order, in the insulated embedded specifically, requirement— funding its incremental order— challenge policies from and amendment.5 But those were supported by very appealed officials who could have them —the state and, result, as a were never defendants — subject challenge. to true focusing appeal,

Instead of on the failure to the Court Appeals 60(b)(5) type should have conducted the of Rule in- quiry prescribed inquiry in This makes no reference Rufo. presence timely appeal. or absence of a It takes original judgment given only as a and asks whether significant “a change either in in factual conditions or law” judgment renders continued enforcement of the “detrimental public to the interest.” Rufo, S., 502 U. at 384. It allows a recognize injunction longer court to that the an or consent stays place, greater decree improp- the risk that it will erly processes. interfere with a State’s democratic Appeals purported engage “changed Court of in a inquiry, only changed circumstances” but it asked whether specifically, circumstances affected ELL and, more funding. appropriate, ELL incremental Relief was in the only petitioners “demonstrate[d] view, court’s if either that post, mean, misleadingly This does not suggests, dissent see 492-493, that are faulting Appeals declining we the Court of to decide place. whether original the District Court’s correct the first order was contrary, following On the explicitly paragraph as we state this statement, Appeals engage our is that the in the criticism did v. Inmates of changed-circumstances inquiry prescribed by Rufo Suffolk Jail, County (1992). excessively of By focusing 502 U. S. on the issue 367 to the funding, Appeals incremental the Court of was not true Rufo standard. longer [we]re incremental costs associated with no there plus incre- programs that Arizona’s ‘base in Arizona or ELL funding altered that was so costs’ educational model mental funding ELL-specific focusing costs has be- incremental on inequitable.” 3d, F. at 1169. come irrelevant 60(b)(5) inquiry “changed circumstances” This was Rule inquiry only. reality, into whether the In it was an in name deficiency the District in ELL incremental this, And effec- remedied. in 2000 been identified had original the order had tively, inquiry into whether was an judgment of is one earlier of an satisfied. Satisfaction been 60(b)(5) is not it relief—but for Rule the enumerated bases only for such relief. the basis 60(b)(5) “[i] judgment permits where relief from

Rule discharged; [ii] judgment or satisfied, released has been judgment or been reversed that has on an earlier it is based equi- longer prospectively applying is [iii] no or vacated; added.) disjunctive “or” (Emphasis Use table.” grounds provision’s of three that each makes it clear that relief independently therefore relief sufficient is petitioners not “satisfied” may if have even be warranted may argue, they petitioners re- original obtain order. As longer prospective “is no order enforcement of that lief if equitable.” Ap- this the Court claim,

To determine the merits ongoing peals enforcement to ascertain whether needed by ongoing supported original violation an order was EEOA). (here, Milliken, S., U. See law federal It failed to do so. requiring previously a State EEOA, while noted, As language “appropriate barriers,” action to overcome to take 1703(f), § “leave[s] au- and local state educational 20 U. C.S. choosing” how of latitude a substantial amount thorities obligation Of Castaneda, F. at 1009. met. this including “appropriate any program, course, educational funding, requires fund- but EEOA, mandated action”

455 By ing simply focusing means, a so inten- the end. sively funding, on of Arizona’s incremental ELL the Court Appeals misapprehended the EEOA’s mandate. And requiring petitioners “appropriate to demonstrate action” through Ap- particular funding a mechanism, the of Court peals improperly its own educational and substituted bud- getary policy judgments for those of the state and local properly officialsto whom such decisions are entrusted. Cf. (“Federal concurring) Jenkins, 515 U. at 131 S., J., (Thomas, possess capabilities gov- courts do not state and local addressing problems”). ernments in difficult educational

C underlying opinion District er- reveals similar August rors. In an 2006 order, remand a different Ninth panel Circuit had instructed the District Court an hold evidentiary hearing “regarding changed whether circum- required original stances modification court order or bearing appropriate remedy.” otherwise had a on the Appx., panel Fed. at 582. The Ninth Circuit observed that “federal courts must be sensitive to the need for modification [of permanent injunctive relief] change.” when circumstances Ibid, (internal omitted). quotation marks

The District Court failed to follow these In- instructions. determining changed stead of whether circumstances war- original ranted modification order, the District Court only petitioners asked original whether had satisfied the de- claratory judgment through order increased incremental funding. Supp. (explaining See F. at 1165 showing specific of “mere amelioration” deficiencies original “inadequate” noted in the District Court’s order was “compliance require system funding and that rationally would

relates available to the actual costs of all added)). (emphasis elements of ELL instruction” The Dis- trict Court “It that the Court finds stated: should be noted problems today year, the same HB saw last because themselves are the same.”6 same, is the problems Id., its thus rested postremand The District Court It of HB 2064. disre- analysis on its preremand decision broad and instructions engage the remand garded 60(b)(5) circum- changed as to whether analysis Rule flexible the Dis- In this taking relief. approach, stances warranted Court abused its discretion. trict

D of the lower narrow approach the The dissent defends the from that it draws conclusions four principal courts with and however, are incorrect conclusions, All of these record. fixation of the lower courts —a error mirror the fundamental to recognize a failure incremental and funding on the issue of 60(b)(5) of Rule a inquiry. scope proper 60(b)(5) “the Rule concludes First, dissent were not Court focused” which the District 'changes' upon 6 fund increase in incremental concluding that the law’s In addition to irrational, the District 2-year was both and that cutoff ing was insufficient funding mecha that HB 2064’s Appeals of held Court and Court part: not NCLB, “A State shall provides which in relevant violates nism determining chapter ... payments into under this take consideration aid, State eligibility any agency in that State for of local educational of aid, respect public education chil of with free or the amount State (HB 2d, §7902. F. 2064’s fund Supp. at 1166 20 U.S.C. See 480 dren.” (“HB 3d, 7902); § 1178 “absolutely 516 F. at mechanism is forbidden” ing face”). HB or not 2064 violates . .. violates on its Whether [§7902] 31-32, Curiae (sug n. 8 Brief for United States as Amicus § and see does), empowered to decide the issue. gesting it neither court below was provide pri recognized, Appeals itself NCLB does As the Court intent], 3d, [statutory at 1175. right of action. See 516 F. “Without vate one, may not create no matter exist and courts cause of action does not policy matter, compatible or how with might be how desirable that (2001). Sandoval, v. 532 U. S. 286-287 the statute.” Alexander administering only by agency charged Thus, with NCLB enforceable id., Respondent State of 289-290; App. to Brief for it. See see also (letter petitioner Department from U. S. of Education Arizona et al. 1-4 2064). vel non of HB concerning legality superintendent “ changes funding, ‘changed limited to teach- included ” “ ” ing ‘changed systems.’ methods’ administrative range changed Post, at 483. The District Court note a did concluding changes, circumstances, that as a result of these Nogales “doing substantially Supp. was better.” F. changes at 1160. But it neither focused on these nor made up-to-date findings. contrary, factual To the the District explained premature that “it would be to make as- an changes.” Accordingly, sessment of some of these Ibid. findings proceeded of fact that the to make, court funding directly exclusively. first 20 addressed id., See eight funding indirectly— at 1161-1163. The last addressed discussing reclassification rates because of their relevance HB 2064’s restrictions for ELL and stu- reclassified dents. See id., 1163-1165. None the District Court’s findings “‘changed teaching of fact addressed either meth- “‘changed systems.’” ods’” or administrative “ The dissent’s second conclusion is that ‘incremental fund- ing’ [were] costs . . . the basic at 2000 contested issue the finding trial and the sole basis for the District Court’s of a statutory Post, violation.” at see con- 483. We fail to this 60(b)(5) clusion’s motion, relevance to this Rule the where question any change legal is whether in factual or circum- original stances renders of continued enforcement the order inequitable. petitioners acknowledges, the As dissent itself “pointed changed [in to three sets of circumstances their 60(b)(5) motion] Rule which, in their showed that the view, judgment necessary.” longer and the no related orders were at Post, in the of 482. In addition “increases amount funding these districts,” available Arizona school included “changes English-learning in instruction,” the method of “changes Nogales in the dis- the administration of school trict.” Ibid. upon type “the of issue

Third, the dissent concludes that Appeals the focused”—the which District Court and Court of statutory funding the incremental at the heart of issue—“lies Post, for 484. opportunity.” demand educational equal we a of this the point, In what to be restatement interpret (“the n resource’ funding also concludes that sufficient dissent issue”) or absence of an violation the EEOA presence issue”) (“the (f) statutory “are one the subsection ” Post, at 485 same. “In original). focusing (emphasis asserts, the the “the District Court and one,” dissent upon Ibid. other.” of were focusing upon Appeals these two issues are Contrary assertion, dissent’s Ibid. decidedly not “one and the same.”7 is Nor as the that the EEOA States’ case, targets dissent suggests, Post, for ELL resources programming. provision repeats The extent errors the courts below to which dissent question is the State is evident statement here whether “[t]he its funding program new ‘change’ shown that satis has that its amounts added). Post, (f)’s requirement.” (emphasis fies subsection at 510 inquiry funding. Rather, it encom proper to the issue of limited any question legal or passes the whether the State has shown factual compliance changes that with the EEOA. establish The first —Cas proposition. two for this The dissent cites sources Pickard, (CA5 1981) a three-part taneda v. 648 F. out test 2d 989 —sets (1) test, must formulate “appropriate action.” a State Under (2) English language plan, implement sound instruction educational id., (3) adequate plan, and achieve results. See at 1009-1010. Whether provides guidance regarding meaning this or not test much concrete action,” “appropriate does not focus on incremental or test provision generally. resources on more curiously—is given by speech The second cited source the dissent — legisla urged prompt by Congress he action on President Nixon which imposing busing Equal and on the Educa tion a moratorium on new orders post, (citing the Opportunities Act of See at 484 Address tional Weekly Comp, Equal Busing, 8 of Opportunity on Nation Educational (1972)). speech, said that Doc. In the President Nixon Pres. . . poor support . neighborhoods in should receive the “financial schools Id., likely at 593. It is know make all the difference.” that we can nothing interpretation with the of EEOA’s this statement had to do proposal to his “appropriate requirement and instead referred action” improving the year mainly in towards over the next “direc[t] $2½ billion Id., event, any poor at 591. But children from families.” education years prior statement, speech in a two general this made Presidential “appropriate What the statute forbids is failure take 1703(f). § language action to overcome barriers.” 20 U. S. C. Funding merely may employed one tool that be to achieve statutory objective.

Fourth, the dissent concludes the District Court did not order ELL increased incremental and did not budget priorities. dictate state and local Post, 486. The point very dissent’s it is a small one—is that the Dis- —and specific legislature trict Court did not set amount that the required appropriate. was The District Court did, how- contempt heavy impose ever, hold State in fines be- legislature provide funding. cause the did not sufficient unquestionably imposed important These orders restrictions legislature’s ability budget on priorities. to set

E misperceived Because the lower courts—like the dissent — obligation imposed by both the nature of the EEOA inquiry 60(b)(5), breadth for under Rule called proper these cases must be remanded for a examination important legal may changes at least four factual and granting judgment: warrant the of relief from the the State’s adoption methodology, Congress’ of a new ELL instructional management NCLB, enactment of structural and reforms Nogales, funding. and increased overall education original declaratory

At the time District Court’s judgment Nogales pri- order, ELL instruction in based was marily “bilingual on content education,” which teaches core providing English language in a areas student’s native while separate language instruction classes. In November passed Proposition 203, Arizona voters which man- EEOA, surely light proper to the little on the enactment sheds interpretation of the statute. English implementation of a im “structured

dated statewide (SEI) App. approach. Pet. for Cert. in See mersion” Proposition at 369a. this methodol 08-294, No. defines ogy follows: English English immersion’ or ‘structured

“‘Sheltered language acquisition proc- English an immersion’ means young nearly classroom in- for children in which all ess English is in but with the curriculum and struction learning presentation designed children are for who Although may language. use a minimal . . . teachers necessary, language of the amount child’s native when taught any language subject matter other no shall be English, program in this learn to children read than and solely English.” Ann. and write Ariz. Rev. Stat. (West 15-751(5) 2009). § legislature to the success-

In HB state attended variety ways.9 implementation ful of SEI in a of and uniform language English task force” It an “Arizona learners created “develop department of within the state education English adopt immer- based of structured research models programs and charter sion use school districts §15-756.01(0). required It that all school schools.” dis- adopted charter select one tricts and schools SEI §15-756.02(A), English it created an “Office models, language acquisition districts in services” aid school §15-756.07(1). implementation It also re- models, quired a uniform the state board of education to institute mandatory training program instructors. for all SEI § 15-756.09. there is docu- on ELL instruction indicates

Research signifi- support for the view that mented, academic SEI provisions, focusing HB By adequacy on 2064’s adequately potential relevance neglected to address courts below immediately upon provisions, became effective programming these which the law. enactment of

cantly bilingual Findings more effective than education.10 Department of the Arizona State of Education in 2004 11 strongly support light proper this conclusion. of this, In 60(b)(5) analysis petitioners’ of Rule motion should include findings regarding Nogales’ imple further factual whether methodology completed of SEI mentation in all of its — “significantly changed schools 2005—constitutes a circum stance” that warrants relief.

Congress’ represents poten- enactment of NCLB another tially significant “changed circumstance.” NCLB marked a policy. in dramatic shift federal education It reflects Con- gress’ judgment way that the best to raise the level of edu- by granting cation nationwide is state and local officials flexibility develop implement programs to and educational holding that address needs, local while them accountable for implements approach by requiring the results. NCLB this receiving performance States federal funds to define stand- regular progress ards and to make assessments of toward 6311(b)(2). § of attainment those standards. 20 U. S. C. receipt NCLB conditions the of on continued funds demon- “adequate yearly progress.” of strations Ibid.

10See Defense Fund et al. as Amici Unity Legal Brief for American Curiae 10-12 sources, (citing including City Education, New of York Board Progress Educational of in Bilingual Programs: Students and Lon ESL gitudinal Study, (1994); Torrance, 1990-1994 2 K. Immersion Not Sub Bilingual mersion: Lessons From Three California Districts’ Switch From (2006)). Education Immersion 4 Structured Ed., See Dept. Bilingual Programs Ariz. The Effects Education English Programs and Structured on Immersion Student Achievement: A (Draft (“In 2004) Large-Scale Comparison July general statewide comparison bilingual programs 2002-2003], and SEI those [in students programs significantly outperformed bilingual in SEI in 24 out students 24 comparisons Though programs .... in bilingual students SEI and apart primary grades, bilingual no are more than three months year counterparts students are than a their more behind SEI seventh grade”). eighth and (which English includes Title III here,

As relevant Language Aca- and Language Acquisition, Enhancement, Act) requires ELL ensure Achievement States demic high English proficiency, develop levels of “attain students challeng- English, meet the same attainment academic ing achieve- academic academic content and student State expected meet.” are all children ment standards as 6812(1). objective § requires achieve- It annual States set annually goals who will for the number of students ment proficiency, proficiency, make progress achieve toward respect yearly progress” “adequate with to academic 6842(a), § agencies achievement, and holds local schools 6842(b). § meeting objectives, accountable for these through compliance argue with NCLB, Petitioners that They compliance has established with the EEOA. the State compliance plan adopts a under that when a note State provide of ade- the State Arizona has—it must NCLB—as quate ELL will assurances that receive assistance students subjects high so achieve at levels in the core academic “to as all those can meet the same . . . standards that children 6812(2). § They argue expected that are to meet.” children Department approves when the Federal of Education a plan respect with offers it has Arizona’s—it State’s —as “appropriate taken ac- evidence that the State has definitive meaning language barriers” within the tion overcome 1703(f). § EEOA. agree, Appeals we be- that concluded, The Court of statutory significant schemes, in the two cause of differences necessarily “ap- compliance will with NCLB not constitute propriate 516 F. 3d, action” under the EEOA. at 1172-1176. plan Approval not entail review of an does substantive NCLB programming ELL or a determination that the of State’s equal opportunity programming in educational for results §6823. Moreover, ELL contains students. See NCLB part saving provides “[njothing that in this clause, which any Federal be construed in manner inconsistent with shall § right.” guaranteeing a civil law This does that is not mean, however, NCLB relevant 60(b)(5) Rule motion. To we petitioners’ contrary, it think is four probative ways.12 First, principal the State to institute structural prompted significant in its ELL programming changes delivery education,13 the Court leading that “Arizona Appeals observe has its ELL significantly improved 3d, infrastructure.” 516 F. at 1154. These should not be discounted in changes 60(b)(5) Rule because do not or analysis solely they require from result increased NCLB funding. Second, significantly increased federal education in and ELL general programming These funds should not be particular.14 dis- just because are not regarded they state funds. Third, its assessment through requirements, NCLB reporting 12Although argument the dissent contends that the sole raised below regarding compliance NCLB was that with Act necessarily consti compliance EEOA, Appeals tuted with recognized the Court of 60(b)(5). is a NCLB relevant factor that should be considered under Rule acknowledged It compliance with NCLB least pro “somewhat compliance bative” with the EEOA. 516 F. n. 46. The States, in as amicus curiae United its brief supporting respondents, simi that, larly though observed Title III participation complete “[e]ven is not a EEOA, under the reaching defense whether a State is its own goals under may III Title be an suit.” Brief for relevant EEOA United States that, “[b]y increasing 24. And the District Court noted the standards accountability, has to significantly changed [NCLB] of some extent State students in Arizona.” Flores v. Ari approach educating educators to (Ariz. 2007). zona, Supp. 1157, 480 F. 2d 1160-1161 13Among things, other department the state education of formulated compliance plan, approved by of Department the U. S. Education. The board of ELL promulgated proficiency state education statewide stand ards, adopted standards, programs uniform assessment and initiated for monitoring English training school and districts structured immersion 1154; 3d, See 516 at Brief for Reply teachers. F. see also Petitioner Superintendent 29-31. 14 (“At Superintendent 22, [Nogales], Brief for 13 See Petitioner n. Title $1,644,029.00 $3,074,587.00 2006, in I monies increased from in 2000 to Title $216,000.00 $466,996.00 II monies in 2000 to in and increased from $261,818.00 monies, not in from Title III which did exist increased 2006”). $322,900.00 in 2003 in 464 of No- and achievement the evidence of progress

provides This could provide persua- students.15 evidence ELL gales’ ELL Nogales’ of of the current effectiveness sive evidence programming.16 a shift in federal edu- NCLB marks finally,

Fourth of Ari- for See Brief Petitioner Speaker cation policy. of et al. 7-16. NCLB grants zona House Representatives are believe ELL “flexibility” adopt programs they States §6812(9). Reflect- teaching “most effective for English.” in research increased consensus education ing growing achievement,17 not student alone does improve 15 (2005-2006 08-289, See, App. pp. to Pet. for Cert. in 310-311 g., e. No. students, students, ELL testing ELL and non-ELL for reclassified data (2005-2006 id., tests); at re achievement 312 data on statewide students garding Nogales’ achievement the State’s annual measurable account students). ability objectives for ELL 16 interpreted testing in the record to Appeals The Court of data F. weigh finding programming Nogales. in 516 against of effective See (noting [Nogales’]progress... apparent limits of are “[t]he results”); id., in the test test at 1169- AIMS results reclassification in (citing persistent gaps [Nogales’] documented “the achievement speakers). ELL do not AIMS test data” between students native We findings support made sufficient factual its think the District Court Nogales’ programming, ELL and we conclusionsabout effectiveness of question Appeals’ interpretation of the data three reasons. Court First, Appeals longitudinal data recognized, as the Court absence of Second, id., precludes comparisons. in record useful See achievement tests on which the Court of the AIM'S tests —the statewide Appendix A of Appeals primarily and which the dissent cites relied It is that ELL stu opinion English. its administered inevitable —are (who, definition, yet English) underper will proficient are dents speakers. Third, compared negative to native data that form as by positive See, App. Appeals highlights g., is balanced data. e. average, year, on reclassified (reporting that for the 2005-2006 school than, as, English speakers native on the did as well if not better students tests). AIMS Policies, Input-Based See, g., Hanushek, Schooling The Failure of e. (Feb. 2003) regarding F64, (reviewing J. U. S. data 113 Economic F69 concluding although policies vig “input policies” and such “have been time,” orously long period “no that pursued over a there is evidence

465 NCLB refrains from expressly In dictating levels. stead, on focuses the demonstrated of students progress through reforms.18 The accountability original declaratory in judgment order, contrast, withdraws of state authority and local officials to fund and ELL that implement programs best suit Nogales’ needs, and measures effective program ming in terms of solely incremental adequate This funding. conflict with determination of Congress’ federal may policy constitute a significantly changed circumstance, warranting relief. See Railway Employees v. Wright, 642, 651 U. S. (1961) (noting that a court decree should be when modified “a in change law in conflict brings [the decree] with statu tory objectives”).

Structural and in reforms constitute management Nogales another relevant in circumstances. change These reforms improved added resources performance”); LeFevre, have student A. Legislative Exchange Council, American Report on Edu- Card American (15th 2008) State-by-State Analysis cation: A (concluding 132-133 ed. spending explain achievement); levels alone do not in differences student Burtless, Summary, Money G. Introduction and The Ef- Does Matter? 1, fect School Resources on Student Achievement and Adult Success (1996) (noting spending on inputs “[i]ncreased school has not led to gains performance”). notable in school overwhelmingly

18 Education literature supports reliance on accountability-based opposed pure spending. reforms increases g., e. See, Raymond, Accountability Hanushek & Does School Lead Im (2005) proved Pol’y 297, 298 Analysis Mgmt. Student Performance? J. & (concluding accountability systems into “the introduction a state tends larger growth to lead to than have occurred achievement would accountability”); Commerce, Lag without U. S. Chamber of Leaders and gards: State-by-State Report A on 7-10 Card Educational Effectiveness (Feb. 2007) inputs other as a focus (discussing various factors than —such impact accountability significant on academic standards and have a —that achievement); Fuhrman, Introduction, Redesigning on Ac student S. (S. countability Systems for & R. Elmore eds. Education 3-9 Fuhrman 2004); al., Improving Performance Making E. Hanushek et Schools Work: (1994). Controlling Costs 151-176 from superintendent Kelt the Nogales

were led by Cooper, or elimi- that ameliorated policies 2000 to who “adopted discussed the most glaring inadequacies many nated other 1156. Among court.” 516 F. at the district by im- sizes,” “significantly class “reduce[d] Cooper things,, teacher ratios,” quality,” “improved student/teacher prov[ed] and curriculum uniform of textbook system “pioneered had been a severe eliminated what and “largely planning,” Id., 1156-1157. of instructional materials.” shortage careful fi- that “[u]sing The recognized Appeals available,’ for ‘all funds nancial management applying re- with limited to achieve his reforms was able Cooper Id., at 1157. But the Court missed Appeals sources.” these reforms of this observation —that legal import into compli- have ELL Nogales’ programming might brought ELL incremen- sufficient ance the EEOA even without with In- order. original tal District Court’s satisfy to funding that to credit Cooper’s concluded stead, the Court Appeals its best to “for doing reforms would “penaliz[e]” Nogales to with terms Arizona’s failure do, comply make despite provid- the state from and would “absolve judgment,” as required by ELL incremental ing funding adequate Id., dis- The District Court similarly judgment.” achievements, Nogales counted acknowledging Cooper’s con- 2000,” than but was better it was “doing substantially from management resulted because the cluding progress its was than progress efforts rather increased funding, 2d, at 1160. at best.” 480 F. “fleeting Supp. both funding, in the of incremental framework

Entrenched be .“ap- could Nogales taking refused to consider that courts even without barriers action” address language propriate error. This was order. original satisfied having educational opportunity” “equal EEOA seeks provide 1701(a). ulti- § Its schools.” “all enrolled in public children of educational programming mate focus on quality provided money- services students, not the amount of spent Accordingly, statutory on them. there is no basis precluding petitioners showing Nogales from has EEOA-compliant programming by achieved means other example, through Cooper’s than increased struc- —for accountability-based tural, curricular, and reforms. The weight suggests types of research that these of local re- court-imposed funding forms, much more than mandates, improved opportunities.19 Cooper lead educational even changes imposed, testified that, without the structural he money” any “additional not would “have made difference to th[e] Nogales. Reply in students” Addendum to Brief for Speaker Representa- Petitioner of the Arizona House of et tives al. 15. Appeals Cooper’s

The Court of discounted reforms they explained other reasons as It well. that while “did many examples specific ameliorate of resource short- ages they that the district court identified in not 2000,” did question [No- “result in such success as to call into serious gales’] need for increased incremental funds.” 516 F. Among things, Appeals other the Court of referred to persistent gaps [Nogales’] “the achievement in documented speak- test AIMS data” between ELL students native any comparison ers, id, but such must take into may explain gap. any account other In variables requires “appropriate event, action” to remove EEOA 1703(f), § language equalization barriers, of results speakers between native nonnative on tests adminis- English worthy goal, in sure, tered may to be but one that —a exceedingly especially achieve, be for older difficult ELL students.

19See, e.g., Springer & Guthrie, Politicization the School Finance (M. Process, Legal Money in & P. Peterson School Trials West 2007); Lindseth, Schoolhouses, Courthouses, and eds. E. Hanushek & A. Funding-Achievement Solving the Puzzle America’s Public Statehouses: (2009). Schools subpar perform- Appeals also referred to The Court of high Nogales’ No- is no doubt that schools. There ance high represent gales’ but the weakness, an area of schools findings support factual District Court made insufficient problems high stem from a fail- a conclusion that schools’ “appropriate a violation action,” to take and constitute ure of the EEOA.20 requirement grants “appropriate action”

The EEOA’s implement design, ELL fund, latitude to States broad programs and account for local condi- that suit local needs 60(b)(5)inquiry recognize proper this A should tions. Rule mana- a result of structural and whether, and should ask equal improvements, Nogales providing gerial educa- now opportunities to ELL tional students. change potentially important in-

A fourth is an overall Nogales. crease the education available declaratory judgment original noted five sources of order funding collectively financed in the that education State: (1) (2) funding, “base ELL incremental State’s level” (3) (4) county funding, grants, regular federal district (5) county special voter-approved taxes, and district and Supp. at called F. 1227. All five 2d, taxes “overrides.” 172 notably 2000.21 Nbtwithstand- sources have increased since many possible in performance There are causes for the of students difficulty Nogales’ high programs. ELL include the of school These whom, (many presumably, were not teaching English to older of students students) problems such English-speaking younger in schools as Reply Brief for Petitioner drug prevalence gangs. use and the of See 14-15; Reply Brief Representatives of et al. Speaker the Arizona House of 16-17; App. Superintendent 116-118. We’ note no for Petitioner pro ELL findings as to effectiveness of particularized has made court gramming Nogales’ high schools. offered an disputed, “[o]n and it not Appeals reported, is Court including funding, support inflation-adjusted basis, sources statewide all $8,139 per in 2000 pupil to an estimated for education has increased from ing rejected these Appeals petition- increases, the ers’ sup- claim that overall education funds were sufficient to port EEOA-compliant programming Nogales. The court diverting reasoned that base-level education funds would necessarily programs, hurt other state educational and was “‘appropriate’ step.” not, therefore, an 516 F. doing, possibility

In petitioners so foreclosed the could changed warranting establish through circumstances relief funding an overall Nogales. increase in education available in legal This was clear error. As noted, we have the EEOA’s “appropriate requirement necessarily action” does not re- any quire particular funding, level of to the extent that funding certainly is require relevant, EEOA does money any particular that the come from In addi- source. plainly give tion, the EEOA does not the federal courts the authority judge whether a or State a school district is providing “appropriate” subjects. instruction in other That province remains the of the States and the It local schools. is programs, unfortunate if a school, in order to fund ELL money programs, must divert from other worthwhile but scope such fall decisions outside the of the EEOA. Accord- ingly, 60(b)(5) analysis petitioners’ Rule motion should budget general evaluate whether the State’s education funding, any currently sup- in addition to local revenues,22 porting EEOA-compliant programming Nogales. ELL engaged inadequate

Because the lower courts in an Rule 60(b)(5) analysis, and because the District Court failed up-to-date analysis findings, make factual lower 2006; $3,570 sources, per county pupil Adding in all and local gone $5,677 per pupil $6,412 per pupil has from to an in in 2000 estimated 2000, Finally, gov- 2006. In federal has increased. federal an provided 2006, provided in per pupil; $526 ernment an additional estimated 516 F. at 1155. $953.” 22 year 2000, Nogales passed Reve Each since voters have an override. $895,891 to Nogales’ in 2001 nues from override have increased from Pet.,for 08-294, $1,674,407 App. p. in in 431a. 2007. to Cert. No. inadequate respect incomplete all of to and with courts was changes just changed are noted. These circumstances 60(b)(5) they analysis, proper however, Rule critical to longer may Nogales in violation of no is establish contrary, taking “appropriate to action” EEOA to is and, language case, If this in its schools. is remove barriers original order of the District enforcement Court’s continued 60(b)(5), inequitable meaning relief of Rule is within the is warranted.

IV finally, entry of the District Court’s statewide turn,We along Nogales which is situated district, relief.23 The the State border, Mexican is one 239 school districts Nogales up of 1 make about one-half of Arizona. students percent population.24 The record school of the entire State’s any findings dis contains no or evidence that school factual fail) (much Nogales trict than less continues other failed provide equal opportunities to ELL students. educational App. at 177a-l78a. Nor 08-294, See to Pet. for Cert. No. justify explained respondents how the could have EEOA injunction only or claimed when the violation statewide what is below, this not raised but The dissent contends that issue was that, explained in the important present is for the reasons purposes the Dis previous parts opinion, of this cases must remanded to these be 60(b)(5) analysis. it clear proper trict for a Petitioners made Rule remedy of the argument they argue at oral wish to that the extension Arg. See Tr. of Oral Nogales than be vacated. to districts other should (“Here That transmogrified apply statewide. the EEOA has been in first It not have done in the has been done before. should been id., circumstances”); also certainly light changed see stance but argument on re 17-18, 21, Accordingly, petitioners raise if any legal or fac mand, the whether there District Court must consider denying tual basis for that relief. Section, Ed., 2008-2009 Dept. See Ariz. Research and Evaluation School, 1, 17, http://www.ade. October Enrollment District Grade state.az.us/researchpolicy/AZEnroll/2008-2009/Octenroll2009schoolby case (as Clerk of Court’s available in grade.pdf visited June file).

proved single was limited to Jenkins, a district. See S., Milliken, U. It 89-90; S., 433 U. at 280. is not even jurisdiction clear that the District Court had to issue a state- injunction apparent plaintiffs wide when it is not that —a Nogales parents standing class students and their —had seek such relief. , only explanation proffered entry for the of statewide interpretation

relief was an based on of the Arizona Consti- attorney general tution. We are told that former “af- firmatively urged remedy ‘Nogales a statewide because a only’ remedy would run afoul the Arizona Constitu- requirement general public tion’s of ‘a and uniform school system.’” Respondent (quoting Brief for Flores et al. 38 § 1(A); quotation Const., Ariz. omitted). Art. some internal marks provide This concern did not a valid basis a statewide injunction. attorney general If the state believed federal injunction requiring spending federal increased ELL in one necessitated, district as a matter of state law, similar every attorney increase in State, other district in the general legislature could have taken the matter to the state attorney general or the state courts. But the did do so. if had, Even she it is not clear what the result would have question by been. It is a law, state be determined equal funding provision state whether the authorities, require Arizona Constitution would statewide Nogales’ funding, increase to match ELL or would leave Nogales federally compelled exception. By failing aas recognize injunction entering this, a statewide deeply budgetary processes intruded into the State’s based attorney solely general’s interpretation law, on the of state accountability the District Court obscured for the drastic remedy entered. obligation it is an

When unclear whether onerous is the accountability Government, work the Federal or State , diminished. See New York v. United 505 U. S. States (1992). pre “improperly the District Court Here, addressing the issue vented] from of the State the citizens provided through processes relief] the [of the statewide Affairs, Hawaiian Hawaii v. constitution.” State’s of Office (2009). Assuming petitioners, on 163, 176-177 556 U. S. objection press extension ofthe the statewide their to remand, injunction remedy, inso vacate the the Court should District Nogales beyond the concludes unless court far as extends violating basis. the on a statewide EEOA that Arizona is goal question that is no EEOA—overcom- There vitally important ing language and our one, barriers —is way any efforts to achieve will in undermine decision ultimately granted goal. petitioners are relief from If they judgment, have that the be shown it will because exactly doing Nogales what this statute School District English requires taking “appropriate action” teach — speaking language. grew up another who students ^{[*] [*] [*]} judgment Appeals and of re- reverse the Court We whether, the District to determine mand the cases for Court peti- opinion, out this the standards set accordance with judgment. . granted from the be relief tioners should is so ordered.

It Justice Stevens, with Breyer, whom Justice Justice Ginsburg Souter, join, dissenting. Justice Superintendent Instruction, Public The Arizona Speaker the Ari- and the Senate, of the Arizona President here) (the brought petitioners Representatives zona House 60(b)(5) in a motion Fed- Rule of Civil Procedure a Federal judgment asking the court set aside District eral orders) (and accompanying court entered that the had judgment year of Arizona’s held that the State 2000. The program English Language plan was Learner its arbitrary, “appro and therefore the State had failed to take priate language impede action to overcome barriers that equal participation by Spanish-speaking public its” school programs.” students “in its instructional 20 U. S. C. § 1703(f); (CA5 Castaneda Pickard, v. 648 F. 2d 1981) (interpreting “appropriate provi action” include the “resources”). “necessary” sion of financial and other moving parties argued “significant change[s] either in factual or in law,” conditions v. Inmates Rufo of Suffolk County (1992), Jail, 502 U. S. entitled them to relief. The State of Arizona, Arizona Board of Education, and original plaintiffs (representing in the case students from Arizona) Nogales, 60(b)(5) opposed superintendent’s Rule They respondents motion. are here. taking holding

The District Court, after evidence and eight days hearings, changed considered all circum- parties stances that the called its attention. The court “changes” concluded place. that some relevant had taken ultimately changes But the court found those insufficient setting original judgment. warrant aside the Court Appeals, carefully 41-page in opinion, a reasoned affirmed that district court determination. This Court now sets the Appeals’ says, Court of decision it so, aside. it And does excessively because “the lower courts focused the narrow on question adequacy of the State’s incremental [English-learning] fairly for instruction instead consider- ing question, important whether, broader as a result of changes during intervening years, fulfilling the State was obligation” “by its under the Act other at Ante, means.” added). (emphasis The Court reaches its ultimate conclusion—that lower changed courts did “fairly not consider” circumstances— complicated way. begins placing It these cases in category litigation.” it Ante, calls “institutional reform special litiga- It then sets forth “institutional reform modify applicable tion” when are standards courts asked applies It judgments entered such cases. and decrees committed that the lower courts standards, and finds those error. disagree For with for several reasons. one

I the Court easily thing, label fit reform” does the “institutional the Court For the review standards another, these cases. incomplete are reform” cases enunciates “institutional they applies here, those standards insofar as and, 60(b)(5)’s Finally, my objectives. effectively distort Rule the Court of the record convinces me that own review “fairly wrong regardless. courts consider” The lower did change parties every that the called to in circumstances supports adequately The record more than their attention. misapplies In a I fear the Court word, this conclusion. reaching inappropriate procedural framework, result an supports. adequately law In neither the record nor the English-learning doing denying so, risks schoolchildren the language necessary barriers that “to overcome instruction 1703(f). § “equal participation.” impede” their 20 U. S. C. I A my disagreement it is Court, with the un- To understand length necessary fortunately to examine record initially upon criticism basic detail. I must focus Court’s namely, analysis, lower courts courts’ that the of the lower major- sight In the for the trees. lost of the forest somehow wrongly ity’s well as this view, those courts—as dissent — English- subsidiary upon matter, a “incremental” focused “funding,” learning program matter, rather than the basic curing, “changes” to or had come close cured, had whether original underlay judg- of federal law that the the violation as if a district view, it is Ante, at In the Court’s ment. desegregation faced with motion dissolve school court, only pur- upon failure the school district’s decree, focused decree-required discussing chase 50 buses, school instead of question, the basic whether the schools become had inte- grated for without need those buses.

Thus the Court writes that the lower courts focused so heavily original funding” on the decree’s “incremental re- quirement they failed to ask whether “the State was fillfilling obligation “by its under” federal other law means.” frequently Ap- Ibid. And the Court criticizes the Court of peals having exclusively for “focused almost on the suffi- ciency funding,” “confining of incremental for ante, at 452; scope analysis funding the of its to” the “incremental re- quirement,” having only ante, at 453; for whether “asked changed [English-learning] funding circumstances affected specifically funding,” and, more . ibid.; . . incremental for inquiring only deficiency “into whether the in ... incremen- tal the District Court in 2000 identified had (in been remedied,” ante, at reader 454; and case the has not yet gotten point) intensively “focusing the so on Arizona’s funding,” incremental... ante, 455. The adds that Court wrong only the District Court too was to have “asked petitioners declaratory original whether the had satisfied judgment through funding.” order increased incremental Ibid. problem with this basic criticism is that State’s

provision adequate English-learning resources its stu- i. dents, e., what the Court “incremental refers fund- ing,” always has issue in been the contested these basic why continuously cases. That lower courts focused directly upon they attention cases it. In the context these directly To return to forest, looked not the trees. upon desegregation example, the school the court focused upon degree integration, and not matter, heart purchased. A the number of district had buses school history description statutory of these context and the sensibly drive eases makes clear cannot do) (as wedge the “incre- what it calls to between it wishes comply funding” with uncured failure issue mental requirements of federal law. charged of sub- a violation in these cases The lawsuit filed (f) Opportunities §204 Equal Educational section 1703(f). § Subsection 515, 20 U. S. C. 1974, Act of 88 Stat. (f) provides: deny equal opportunity to educational State shall

“No sex, or race, color, or her an on account of his individual origin by— national

“(f) agency by to take the failure an educational language appropriate barriers action to overcome equal participation in- impede in its its students programs.” structional princi- part provision Act that embodies of broader

ples he called 1972, forth in when that President Nixon set opportunity “equal provide upon educational Nation minority many “poor” every person,” including long those education” as well as “doomed to inferior children handicaps.” language under “who start their education Equal Opportu- Educational on Address to Nation See (em- Weekly Comp, nity Busing, of Pres. Doc. Address). added) (hereinafter phasis Nixon provide all students wrote that In this Court and curricu- teachers, facilities, textbooks, “with the same “effectively who do those “students will foreclos[eJ” lum” meaningful English any education,” . . . understand from Nichols, “mockery public making Lau. v. education.” added). year (emphasis The same Con- 563, 566 414 U. S. (f) reflecting gress, subsection concerns, enacted these language ... barri- to “remove that seeks Act—a subsection

477 impede equality opportunity.” ers” “true of educational (1972). Rep. p. H. 92-1335, R. No. 6

2 In 1981,in Pickard, Castaneda v. F. 648 2d the Court (f). Appeals interpreted for the Fifth Circuit subsection sought statutory It “appropriate” construe the word so as recognize obligation both the to take account “the need English speaking language of limited children for assistance” “governance” primary secondary and the fact that the ordinarily properly education “is reserved to . . . state and agencies.” local Id., educational 1008, 1009. at (f) applying The court concluded that a court subsection engage inquiries. should in First, three court should system, respect “ascertain” whether the school in students yet proficient English, are pursuing” who in “is an English-learning program by that is an “informed educa- theory recognized by experts tional as sound some in the legitimate experimental strategy.” or, least, field deemed a Second, Ibid. that court should determine “whether practices programs actually system [the] used school reasonably effectively implement are calculated to the educa- theory adopted by say tional the school,” which is to that the system through practices, school must with re- “follow necessary personnel sources and its chosen transform” theory reality.” (emphasis educational Id., “into 1010 added). practices, personnel Third, if are ad- resources, equate, go the court on to should ascertain whether there programs produce e., “results,” some indication that i. actually language confronting that “the are barriers students being overcome.” Ibid. ap in other have followed

Courts Circuits Castaneda’s proach. g., Educ., e. 811 See, v. Illinois Bd. Gomez State (CA7 1987); Texas, 1030, 1041 680 F. 2d F. 2d United States v. (CA5 1982); Supp. Wilson, F. 2d Valeria G. v. (ND 1998). has its denied No Circuit

1007, 1017-1018 Cal. validity. party contests the District in these cases no And three-part standard to use Castaneda’s decision Court’s us. before these cases English lan- plaintiffs are a class of in these cases profi- with limited

guage e., i. students students, learner ciency English, in the school district who are enrolled city along in in Nogales, Arizona the Mexican border a small majority from homes where the of students come which vast they language. primary the Spanish 1992, In filed is the against present Arizona, board the State of its lawsuit claiming superintendent, that the State the education, and (f), by proper failing adopt subsection had violated by failing provide programs, English-learning “to but finan- necessary” programs make those resources cial other App. reality Spanish-speaking practical 7, for students. (sec- added); supra, (emphasis at 1010 ¶20 Castaneda, see they requirement). particular, said, In ond, e., “resource,” i. programs “[t]he those that would allow students cost” of English effectively, say, proficient level, at a learn to read only the State theoreti- “far the financial assistance exceeds 20(a). App. cally provides.” ¶ 7, “sys- sought the State had declaration students provide tematically as well failed refused to fiscal . . . or Nogales the Uni- sufficient to enable” other resources “similarly [school] situated District and other fied School programs maintain” successful “establish and districts” to they sought ¶ an English 10, at And Id., learners. injunction provision requiring appropriate the of such complaint. the The state defendants answered resources. subsidiary resolving disagreements is- on various And after proceeded parties the trial on 19-30, see at the sues, id., namely, disputed the remaining whether case, issue “adequately authorities its education State and fund English-learning program. v. Ari- Flores oversee” their (Ariz. 2000) Supp. (emphasis zona, 172 F. 1225, 2d added). January 3-day

In 2000, after a bench trial, Dis- specific findings, trict Court including made 64 factual following:

(1) (and The State assumes that its school districts need sources) will funding equal obtain from local and statewide designated per reflecting to a “base level amount” child— funding required “typical” to educate a student, Flores v. (CA9 2008) along Arizona, 516 F. 3d 1140, with an — special additional amount needed to educate each child with including yet needs, educational those children who are not proficient English. Supp. 172 F. 1227-1228.

(2) year In the “base level amount” the State necessary typical assumed to educate a child amounted to (in dollars). roughly year $3,174 Id., at 1227. (3) study A cost conducted State 1988 showed English-learning programming that, time, cost school per English-learning districts an additional $424 Id., child. Adjusted year at 1228. for inflation to extra per English-learning program cost student of the State’s was per English-learning $617 child.

(4) year funding provided In the the 2000, State’s formula only pay school districts with to for the in extra $150 $617 per pay costs child that the State assumed were needed to English-learning program. for its at 1229. Id., suggestion any Nogales, The record contains no or readily anywhere other district, school could turn but to the per-student to State find the difference between the $467 amount the State assumed was needed and the amount that it made id., available. See at 1230. Nor does the record any suggestion any Nogales contain or other dis school redistributing by trict could have covered additional costs (In year typical-child funding “base the level,” it received. compared provided States, 2000, Arizona, with other funding Dept. per S. third-lowest amount of child. U. of Ed- for Sciences, Center National of Education Institute ucation, & C. Di- Hoffman, Dillow, S. Statistics, T. Snyder, Education Ex- and 2008, 2, Ch. Revenues of Education Statistics gest 184, http://nces.ed.gov/pubs2009/2009020.pdf Table penditures, (all materials as visited (hereinafter Internet 2008 Digest) file).) case and in Clerk Court’s 2009, available 28, June the District Court findings, these related Based on and the addi- method paying concluded that State’s was education with English-learning tional associated costs to no relation the actual and “arbitrary capricious [bore] at 1239. The court 2d, 172 F. needed.” funding Supp. resources was of financial the State’s provision added that to effectively implement” “not calculated reasonably Ibid. chosen the State. English-learning program take action” Hence, failed to “appropriate the State had students, teach non-English-speaking English words) (in to provide “practices, had failed Castaneda’s to make its chosen edu- resources, necessary personnel” 1238-1239; 2d, 172 F. theory “reality.” cational Supp. Castaneda, 648 F. at 1010. 1703(f); § see also entered judgment The District Court consequently later entered the students’ favor. court injunctions (1) to estab- study cost State requiring “prepare to effectively implement” lish the proper appropriation (2) requiring own English-learning program, State’s some mechanism that would bear to develop State “reasonably]” or “rational the actual funding relatio[n] students would needed” to ensure that non-English-speaking g., Flo- e. See, mastery” “achieve English language. Arizona, (Ariz. 2000); res v. 1043, 1045, F. 2d Supp. (D. *2 Ariz., CV-92-596-TUCACM, 2001 WL No. 2001) added). June (emphasis de- nor with the 2000 complied

The neither appealed State When, or of the orders. any injunctive claratory judgment failed to either produce the next few the State years, during rationally a ordered or study type funding program resources, the court related to need for financial imposed upon designed of series fines the State to the lead State to comply with Supp. its Arizona, orders. Flores v. F. 2d (Ariz. 2005). 1112, early legislature began

In 2006, the state to HB consider among things, provided that, bill 2064, a other for the cre- charged develop ation of a “Task Force” “cost-efficient” teaching English. methods for The bill would also increase appropriation teaching English for to students who (though prohibited spending any needed to learn it of upon any particular increase student than more two (the years). petitioners In 2006, March here Arizona Superintendent of Public Instruction, the of President Arizo- Speaker Representatives) Senate, na’s and the of its of House (1) asked the District Court to consider whether HB 2064, satisfy judgment injunctive as enacted, would its orders, (2) forgive contempt liability fine that the had State (3) injunctive grant accrued, and to dissolve the orders and judgment. relief from the 2000 of Motion To Intervenors Purge Contempt, Injunctions, Judg- Dissolve Declare the Injunctions ment and Satisfied, Orders and Set Aside Void as (D. 2006), in No. Ariz., CV-92-596-TUC-RCC Mar. Dkt. (hereinafter pp. Purge). No. 1-2 Motion To brought 60(b)(5), request, The dissolution under Rule sought light changed “sig- relief in of The circumstances. changed circumstances” amounted to nificant identified changes very underlay in the circumstances that the initial finding namely, funding-based violation, Arizona’s fail- provide adequate English-learning ure to re- educational parties moving sources. The asserted that “Arizona has poured money” Nogales funding into result various changes, They pointed id, at 5. to a 0.6% addition to portion tax; state sales the dedication of a State’s gaming proceeds share Indian to Arizona school districts; funding the increase federal since HB 2001; and to state-provided funding. 2064’s Id, increase 5-8. parties light that, said of these “dramatic” additions to in Arizona, available for education court should

482 judgment re- and ... satisfied, the and orders

“declare judgment under Rule and orders from the lieve defendants 60(b)(5).” Id., at 8. by April HB held that 2064

In the District Court 2006, satisfy adequately it orders; the court’s denied not itself did forgive request it not the fines; the did decide the but 60(b)(5) August the petitioners’ 2006, In Rule motion. Appeals that the District Court decide Court of ordered changes particular, to consider whether and, motion, landscape funding required ... modifica- “the of educational bearing original or had tion of the court order otherwise remedy.” appropriate Fed. Rzeslawski, Flores 204 on the v. (memorandum). (CA9 2006) Appx. 580, hearing January 2007, In the District held Court days transcript eight produced evidentiary of an lasted and changes pages. hearing the the The focused on 1,684 setting justified petitioners the said had occurred and aside original pointed judgment. petitioners of The to three sets “practices, changed resources, related to circumstances—all personnel” judg- that the view, in their showed which,— necessary. longer no ment and the related orders were brought They changes argued the State into that the had requirements. compliance three sets with the Act’s (1) changes increases in amount consisted (2) changes in the districts; available to Arizona school (3) changes English-learning instruction; and method of Nogales These of the school the administration district. . changes, petitioners said, had resource-linked cured the District Court’s deficiencies that were noted Supp. enforce- judgment, and rendered F. unnecessary. judgment ment and related orders hearing District briefs, Based on again “re- did cure the that HB 2064 itself not found changes, problem; all resource- it found source” including teaching and otherwise, the new related together, were sufficient methods, taken administrative setting judgment injunctive to warrant aside or the or 60(b)(5) ders; and denied the Rule motion for relief. Flo (Ariz. 2007). Supp. Arizona, res v. 480 F. 2d 1164-1167 Appeals The Court of affirmed the District Court’s conclu setting lengthy sions, forth reasons, its as I have in a said, opinion. superintendent, along and detailed The state with Speaker Representatives of the the Arizona House of sought the President the Arizona Senate, certiorari, and granted petition. we the

B description Five conclusions from follow the of these cases 60(b)(5) just “changes” have I First, set forth. the Rule upon “changed which the District Court focused included the teaching “changed sys methods” and the administrative ignor tems” that the Court criticizes the District Court for ing. Compare ante, at 459-461, 465-467, with III-A, Parts changes petitioners’ III-C, Those in the were, view, infra. “funding” changes related to the issue, for those reduced funding. Purge the need for increased See Motion To 7. majority I concede that the of the District Court’s factual findings funding, focused on ante, see at 455-456. But legal given opinion clearly where is the error, that the shows upon, “Tocus[ed]’” the that District Court considered, petitioners wrote about all the the matters raised? Ante, Supp. 2d, F. 456-457; 1160-1161. Appeals Second, the District Court and the Court of fo- heavily upon funding” cused more costs, “incremental see provision ante, at 452-456, for the reason that the State’s provision necessary e., those costs—i. its of the resources adequate English-learning program an run the basic —was at the the contested issue 2000 trial and sole basis for the finding statutory District of a Court’s violation. 172 F. (f) Supp. dispute is, at 1226. That the sole subsection originally provides the the cases was whether State the “practices, personnel necessary” implement resources and English-learning program. Castaneda, 2d, at its F. changes points than to other out, the sure, as Court

To be Nogales funding system demonstrate could the State’s g., necessary receiving ante, at e. See, the resources. was centrality given to these “resources” But 459-461. hardly surprising below scruti- courts it is cases, funding,” provision but of “incremental the State’s nized changes ignoring to which other related without changes teaching petitioners pointed, methods and such (all rejected as the District Court of which administration insufficient). III, See Part infra. type upon which District Court and

Third, issue statutory Appeals lies at heart focused equal opportunity. failure A State’s demand for educational “practices, personnel provide neces- resources and accompanies sary” to eliminate the educational burden inability English precisely speak what the stat- a child’s (emphasizing supra, at 1010 Castaneda, forbids. See ute “resources”); importance providing Address 593 Nixon providing sup- (referring importance of “financial to the port”). suggests is no no one these cases there need And g., are costs associ- resources, that there no extra for those e. English-learning irrespective education ated with teaching English-learning students, all, after method used. only require content areas” “academic instruction require, “typical” but like math and science that students proficiency speaking, they read- their also need increase writing English. language-acquisition ing, instruc- This and requires particular other instructional textbooks and tion method for in the school’schosen teachers trained materials, tutoring special teaching English, and and tests, assessment resources cost of which instruction —all other individualized al. money. et as School District Brief Tucson Unified English Immersion Mod- 10-13; Amici Curiae Structured Language English Force, Task Learners Arizona els of the http://www.ade.state.az.us/ELLTaskForce/2008/SEIModels requirement 05-14-08.pdf (describing that Arizona’s English-learning language- students receive four hours of acquisition per day specially instruction from trained teach- using designated materials); English-learning ers Imazeki, Assessing Adequacy the Costs of in California Public (2008) Pol’y (estimating Fin. Schools, Educ. & English-learning require students 74% more resources than students). typical why petitioners, opposed That is they judgment are to the District Court’s orders, and ad- English mitted to the District learners “need help money.” extra Supp. and that costs extra See 480 F. at 1161. Fourth, the “resource” issue that District Court fo- 60(b)(5) upon cused when it decided the Rule motion and the statutory (f) subsection issue that lies at the heart of the (and original judgment plaintiffs’ original court’s com- plaint) are not issues, as the Court claims. See different ante, respects they Rather, 457-459. in all essential are upon focusing one and the same In issue. one, the Dis- Appeals focusing upon trict Court and Court of were practical purposes, changes other. For all that would have proved statutory sufficient to show the violation cured would proved setting original have sufficient to warrant aside the judgment decrees, in context, vice versa. And judges parties fully alike were aware of the modification/ relationship. g., violation See, e. Intervenor-Defendants’ Closing Argument No. Memorandum, CV-92-596-TUC- (D. 13,2007), p. (arguing Ariz., RCC Mar. Dkt. No. changes “satisfaction]” judgment). factual had led to say, “[f]unding merely To as the does, Court that is one may employed statutory objec- tool that be to achieve the point. tive,” ante, at 459, true, while the course, is beside Of might ways. way a State violate the Act in other But one provide a which can State violate the Act is to fail to necessary “practices, personnel.” resources and And that is way the the District Court found that the State had violated might Thus, the Act here. whatever be true of some other provide adequate resources cases the failure to case, in these (f) underlying the were one and subsection violation thing. same suggests wrong that the Dis when it

Fifth, the Court is funding,” ante, incremental trict ordered “increased Court effectively “dic faults the District Court 455; at when it tating budget priorities,” ante, it 448; at when state or local welcomed the result “as a means claims that state officials objectives,” achieving appropriations ante, 3;n. 447, at required implies that the District Court’s orders when it funding,” provide “particular ante, at 469. level of State plan produce that The District Court ordered the State relationship or “rational” between set forth a “reasonable” English-learning the resources the needs of students and expressed provided no view about to them. The orders program English-learning use. what State should kind of say anything “appro about the amount did orders Nor provide, priations” ante, 3, at or 447, n. that the State must any “particular funding ante, mechanism,” about obligated the District Rather, to create. the State was legisla [to up left it to the “to recommend State necessary programs funding support ture] the level of Supp. the most effective.” 160 F. it determined to be (what no that the State It ordered more than use) program see that the decided to must ever kind of system program is not benefits from a chosen “bear[s] “arbitrary capricious,” re rational but instead implement lationship” needed to State’s to the resources *2. 2001 WL CV-92-596-TUCACM, No. method. II nothing suspicious or unusual Part I that there shows primarily having focused courts or unlawful about the lower devote upon changes Arizona would resources related to the (while taking English-learning account also education raised). petitioners changes Thus the Court’s all the basic criticism of the lower court decisions is without founda- I tion. turn next to the Court’s discussion of the standards applicable of review the Court finds to “institutional re- litigation. form” my

To understand concern about the Court’s discussion of important keep standards, is in mind the well-known ordinarily govern standards that 60(b)(5) the evaluation of Rule permits motions. The Rule its terms modifica- (1) judgment judgment tion of a or order when “the has been (2) (3) “discharged”; judg- satisfied,” or “released,” when the (4) judgment ment or order “is based on an earlier that has (5) [the “applying judgment] been reversed or vacated”; or prospectively longer equitable.” is no No can one claim that grounds applicable second, third, or fourth are here. judgment The relevant and orders have not been released or discharged; any judgment nor is there relevant earlier 60(b)(5) only has been reversed or vacated. Thus the Rule questions judgment are whether the and orders have been application satisfied, or, if not, whether their continued “equitable.” explained, And, as I have in context these question: come down to the same Is continued enforcement inequitable because the defendants have satisfied the 2000 declaratory judgment doing at or least have come close to given degree so, and, of satisfaction, would it work un- necessary judgment harm to continue the in effect? See supra, at 485-486. 60(b)(5) inequity

To show sufficient to warrant relief, Rule party significant change must that “a show either in factual or in conditions law” renders continued enforcement of the judgment public or order “detrimental to the interest.” party S., 502 U. can claim that “the Rufo, statu- tory changed legal or decisional law has to make what the designed prevent.” decree was Id., at see also 388; Rail- (1961). way Employees Wright, v. U. 364 S. Or the party changed point can claim that relevant facts have to the judgment, where continued order, enforcement of or de- say, disproportionately serious work, cree as written would (modification may ap- supra, be at 384 Rufo, harm. See changed propriate make enforcement circumstances when of un- “substantially “unworkable because more or onerous” obstacles”). foreseen acknowledges, courts, as I,do did lower as

The Court applies. The for relief “flexible standard” that Rufo’s acknowledges, that courts, as this I,do did lower also inquiry a court not itself define the “flexible standard” does 60(b)(5) give passing To con- motion must make. on a Rule refers Milliken v. Brad- to this the Court standard, tent (1977), a ley, said that 282 in which this Court 267, 433 U. S. “eliminat[e] does not that condition decree cannot seek ante, at violation,” “flow from such a violate” federal law or (internal omitted), quotation v. and to Frew Haw- 450 marks (2004), said that in which this Court kins, 540 U. 441 S. to reasonable and neces- decree” must be “limited “consent (emphasis implementations sary at law,” ante, federal omitted). adds internal marks The Court added; quotation litigation” case, a court must in an reform “institutional to maintain decrees ef- take of the need not also account long 448-450, the need take time, ante, fect for too at ante, at concerns,” account of federalism “sensitive reflect collusion to take care lest “consent decrees” need plaintiffs private at and the state defendants between the expense legislative process, ante, at 449. major- together, Taking cases and considerations these ity says question “whether for the lower courts is the critical supported original ongoing order was enforcement of the (here (f)]).” [subsection ongoing of federal law ah violation of féderal e., current violation at If if a Ante, not —i “ discharg- ‘responsibility cannot be detected—then law promptly be] obligations [must ing returned the State’s Ante, at 452. the State.’” problem of its standards discussion with the Court’s

One widely mentions are considerations it insofar as the accepted, fully acknowledged the lower courts and followed 60(b)(5) them. decisions like below, most deci Rule sions, reflect the basic factors the Court mentions. The opinions lower court an indicate of the fact awareness equitable subject per decrees are to a “flexible standard” mitting legal, modification when circumstances, factual or change significantly. Supp. 3d, 516 F. at 1163; 480 2d, F. 383). (citing supra, appli Rufo, The District Court’s interpretation (f), cation of Castaneda’s of subsection along provide F. at 1009, with its efforts to state officials (about discretionary authority funding wide the level of and plan), sensitivity kind shows considerable (at given many years “federalism concerns.” And least seven) noncompliance, of state it is difficult to see how the place decree long. can have in remained too Nor is the decree at issue here a “consent decree” as that normally litigation term is understood in the institutional ante, context. See at 447-450. The State did consent to a peripheral nothing few matters that have to do with the present appeal. App. vigorously But 19-30. the State con- plaintiffs’ original namely, tested the basic claim, that the “appropriate State failed to take resource-related action” (f). presented within the terms of subsection The State proofs designed and evidence to the District Court to show that no opposed violation of occurred, federal law had and it entry original judgment every subsequent injunc- sought by petitioners tive order, save the relief here. beyond speculation, I evidence, can find no the Court’s show- ing that some state officials have “welcomed” the District achieving appropriations Court’s a decision “as means of ob- jectives [otherwise] that could not Ante, be achieved.” why 447, n. 3. But even so, were that a would such fact any matter here more than in other case in which some state employees litigant right? believe a who sues the State I appeal concede that the State did not District Court’s injunctions. original ensuing order or the But the fact that litigated appealing a litigants not turn from does refrain judgment I never least, decree.” have into a “consent At. used. heard that term so before Regardless, far of standards raises a the Court’s discussion problem. I have In addition to standards serious more precedents recognize supra, other, 487-488, our discussed, principles apply outcome-determinative, hornbook here 60(b)(5) The Court a a Rule motion. when court evaluates apply others. It mentions but fails to omits some them. perhaps un- uncertain, I will be result, am others As a set forth correct and work- certain, whether the Court has 60(b)(5) analyzing motion. able method Rule principle not men of law that the Court does First, a basic applicable principle cases as others —is tion—a these (e. special g., plain in the absence of circumstances that, error), judge or factors that the need not consider issues principle parties of law is themselves do raise. That perhaps longstanding, Blackstone, it is reflected age. yet on the an earlier 3 Commentaries comes from (1768) (“[I]t practice England is a unknown Laws examining “to court, of an inferior our when the decree law,” justice of the . decree evidence was examine the . . below”); produced 92 U. S. Clements v. Macheboeuf, never (1876) (“Matters assigned for error will not be 425 not 418, examined”); Savage States, 382, 92 S. see also v. United U. (1876) (where party establish” a with “burden ... to 388 any support “charge to introduce . . . evidence a . . . fails any presumption charge is founda it, the is that the without Technology, tion”); McCoy 950 Massachusetts Inst. v. (“It 22 (CA1 1991) that theories not 13, hornbook law F. 2d squarely for in the court cannot be surfaced raised district judges appeal” “[o]verburdened trial can on the first time readers”). recog expected we have to be mind As not be system adversary operate an nized, would be difficult Duignan principle. justice applying v. such a See without (1927). majority States, But the 274 U. S. United repeatedly precisely g., considers such See, ante, claims. e. (considering significant below); at 463-465 matters not raised (same). ante, at 470-472 60(b)(5) principle,

Second, a hornbook Rule which the party seeking mentions, Court at ante, 447, is that the relief judgment establishing from a or order “bears the burden of significant change that a in circumstances re- warrants” that (emphasis added); lief. 502 U. at Rufo, S., cf. Board of City Ed. Oklahoma Dowell, Public Schools v. 498 U. S. (1991) (party moving judgment for relief from must circumstances). showing” change make “sufficient apply principle. g., But the Court does not e. See, ante, (holding potentially 466-468, n. 20 that movants win English-learning because of of record to show that failure problems funding); do not stem from causes other than see (criticizing failing ante, also at 463-464 lower courts for made). argument consider ignores

Third, the well-established distinction 60(b)(5) request modify between a Rule an order and request judgment entirely to set an unsatisfied aside— previously emphasized. distinction that this Court has supra, (emphasizing Cf. Rufo, 389, n. 12 that “we do not question have before us the whether the entire decree should vacated”). normally only be Courts do the latter if the seeking “party” entirely” “to have” the set “decree aside purpose, “that shows the decree has served its and there is longer any injunction.” no need for the 12 J. Moore al., et (3d 2009) (herein §60.47[2][e] Moore’s Federal Practice ed. Moore). applying after Instead of distinction, the ma jority says Appeals “strayed” the Court of when it changes justified setting referred to situations which judgment entirely “‘likely an unsatisfied aside as rare.’” Ante, at 451. says nothing

Fourth, the Court about well-established 60(b)(5) principle party moving that a under Rule for relief having entirely” that a amounts “decree set aside must (1) objects “attained,” have been that the decree’s both show (2) unlikely, in the ab- S., that it is Frew, 540 U. prohibited will acts it decree, that the unlawful of the sence again in Dowell, case which This Court so held occur. desegregation sought a school relief from defendants state operat- presently ground was on the that the district decree Equal ing compliance the Protection Clause. with finding by agreed Dis- “a with the defendants that Court being City District was that the Oklahoma School trict Court Equal compliance operated . . the Protection with . question to the whether relief was indeed relevant Clause” appropriate. at 247. But the added S., 498 U. was also relief, the defendants must that, to show entitlement [school board] unlikely “it would was show ways.” Only Ibid. then would the to its former return litigation fully desegregation ha[ve] “purposes been of the principle, applicable as sim- here, Ibid. The achieved.” petitioners’ ply failure to show that underscores they pointed “changes” to which were sufficient to warrant entirely setting original judgment. court aside the majority apply, mentions, but fails to the basic

Fifth, the 60(b)(5) dispute legal principle party that a cannot Rule sought. judgment from which relief A conclusions 60(b)(5) party cannot use a Rule motion as substitute say, legal reasoning by attacking underlying appeal, an original judgment by trying to facts, or show they originally, justify then the order’s were did not issuance. Dept. Director, III., 434 U. Browder v. Corrections S. (1978); Co., U. 257, 263, n. 7 United States v. & S. Swift (1932) injunction (party 106, cannot claim that could not lawfully applied been “to the conditions that existed have party require making”). can a court to retrace old its Nor legal say, by remaking rejustifying original ground, or its every [is] an time effort made either “constitutional decision (in modify” supra, at 389-390 Rufo, to enforce or an order. omitted); quotation supra, Frew, at 438 ternal marks see also (rejecting argument power that federal court lacks enforce an order “unless the court first identifies, at the law”). stage, enforcement a violation of federal original judgment upon finding Here, the rested that the provide Nogales adequate State had failed to with fund- ing “resources,” Castaneda, 648 F. 1010, at violation (f)’s “appropriate of subsection requirement. action” How then can the Court fault the lower for courts first and fore- seeking most developed to determine whether Arizona had plan provide Nogales that adequate funding would with having resources? How can it criticize the lower courts for policies “insulated the embedded in the order ... from chal- lenge having ap- and amendment,” ante, at 453, for failed to preciate “funding simply means, not end” statutory requirement, having ante, 454-455, and for misperceived obligation imposed by “the nature of the the” Act, ante, at 459? When the Court criticizes the Appeals “misperceiv[ing]... obligation for the nature of the imposed” by second-guesses finding Act, ibid., when it finding after of the District see Court, III, Part when infra, early suggests may it comply and often that Arizona well despite (and funding plan lack aof rational without discuss- ing changes how the compliance), mentions could show see doing putting ante, 452, 454-455, what else is it but “the plaintiff [or] unnecessary the court ... burden reestablishing Railway what has once been decided”? Em- ployees, S., 364 U. at apply,

Sixth, the Court mentions, but fails to the well- legal principle appellate including settled courts, this 60(b) (of Court, review district court of Rule motions denials us) Browder, the kind before for abuse of discretion. See supra, Railway Employees, supra, at 7; n. at 648-650. reviewing judgment A court must not substitute its Hockey League of the district Metro court. See National v. (1976) politan Hockey (per Club, Inc., cu U. S. riam); Thompson, see also Calderon v. 538, 567-568 523 U. S. (“[A]

(1998) degree dissenting) high of deference J., (Souter, discretionary authority exercising hall- is the court to the review”). Particularly discretion] [abuse where, mark of depends heavily upon fact- here, entitlement to relief power review district determinations, related “ought action,” into seldom to be called decision court’s 60(b) only namely, stand- instance where the Rule in the rare misap- misapprehended grossly “appears or to have ard been Corp. plied.” NLRB, 340 U. v. S. Cf. Camera Universal (1951). that a court bare assertion 490-491 The Court’s relief, it fails to order warranted abuses its discretion when due to the 447, fails to account for the deference ante, at District Court’s decision. 60(b)(5) just concern

I Rule standards that have described (of (1) upon obligation obligation) take of a court to lack (2) parties not burdens raise; account of considerations do (3) setting proof; modi- of the distinction between aside and (4) judgment; fying basic a to show that a decree’s the need (5) objectives importance of attained; have been litigated requiring relitigation previously matters; (6) ig- Does the Court intend to review. abuse discretion apply them nore or more these standards or to differ- one ently involving what it calls “institutional reform in cases litigation”? support approach in the

If find no for its so, Court will namely, Milliken, and Frew. it refers, Rufo, cases to which complex modify court-monitor- a motion involved Rufo prevent overcrowding supervised designed ain decree jail. the fact that the modification local The Court stressed at setting S., the entire U. did not involve aside decree. seeking party from relief 12. made clear that the 389, n. It establishing injunction the burden of an institutional “bears significant change re- warrants” that in circumstances rejected argument a re- Id., at lief. 383. And every viewing an whether determine, case, must court ongoing Id., 389, 390, federal law exists. violation (refusing require n. 12 a new “‘constitutional decision ” every [is] modify’ time an made either to or effort enforce added)). judgment (emphasis or decree question Frew addressed the whether the Eleventh permits Amendment a federal district court to enforce a con- against seeking bring sent decree state officials the State compliance into with federal law. 540 S.,U. 434-435. unanimously doing The Court held that it does; and in so, rejected argument Court the State’s alternative that a fed- may only eral court enforce an such order if it “first identi- existing fies ... a violation of federal law” at the time sought. enforcement Id., at 438. ex- Rather, plained entering that “‘federal are not courts reduced to’” “ ” judgments hoping compliance,’ or orders ‘and id., at power judgments 440, but rather retain the to enforce objects” order “to ensure that... of the court are order emphasized, id., at met, 442. It Dowell, also like that relief only objects is warranted when “the of the decree have been attained.” 540 U. S., at 442.

What of Milliken? Milliken involved direct review (rather relief) than a motion for of a district court’s order requiring system implement the Detroit school to a of host programs, including counseling special reading remedial previously required instruction, aimed at schoolchildren to segregated attend S., schools. U. 272. The 269, “eliminating Court said that a court decree must aim at a “flow[s] condition” that violates federal law or which from” unanimously such Id., a “violation.” at 282. And it found remedy that the at issue was lawful.

These cases confirm the unfortunate fact that Court fully principles apply has I failed essential six any have mentioned. If the does not intend such I standards, then, modifications of these traditional as shall Appeals’ it affirm But if show, must the Court decision. modify application, it intend to or in them, does stated applies a new that are not faithful to now set new rules possibility dangerous will create our cases and which acquiesced long judgments, final or orders, decrees challenge, unwarrantedly subject perpetual of- in, will be endlessly unjustifiable opportunities fering the defendants proof underlying im- relitigate the burden violations with upon plaintiffs. posed again once degree, recognize a reflects decision, to I that the Court’s prop scholarly about how courts should one of a debate side litigation.” erly reform handle decrees “institutional general, Compare, Schoenbrod, Democ R. Sandler & D. racy Happens When Run Govern Decree: What Courts Judge (2003), g., Chayes, Role with, ment e. Litigation, L. 1307-1309 Law 89 Harv. Rev. Public (1976). debate, of that these cases But whatever the merits litigation” that most involve the kind of “institutional do not g., commonly Feeley Rubin, e. E. See, lies at its heart. M. & Making Policy How the and the Modern State: Judicial (1998); ante, but see Reformed America’s Prisons Courts 447, n. 3. prisons, mental hos or schools, do not involve

These cases pitals basic constitutional standards. that have failed meet They g., do involve Dowell, S., 498 U. at 240-241. See, e. running judicial governs comprehensive a decree Finney, g., major S. See, e. Hutto v. U. a institution. (1978). They highly a detailed do not involve 678, 683-684 e.g., Lamm, v. 639 F. 2d See, Ramos set of orders. 1980). (CA10 They special master not involve do 585-586 supervising complex charged decree that with the task of compliance bring large with gradually into institution will g., 1115, 1160-1161 2d Estelle, 679 F. See, the (CA5 e. Ruiz v. law. 1982). they more common com involve the Rather, government failed to meet a plaint has or local state g., statutory requirement. de See, e. Concilio Salud federal 16 3d Integral Pérez-Perdomo, 551 F. Loiza, Inc. de v. (CA1 Orgs. 2008); Community Association for Reform (CA7 1995); Edgar, B. v. John F. 797-798 56 3d Now v. (MD 2001). Supp. They Menke, 176 786, 813-814 F. 2d Tenn. imposition upon involve a court of a fine the due its State to lengthy steps g., comply. failure to take to See, e. Hook v. (CA9 Dept.

Arizona Corrections, 107 F. 3d 1397, 1404 1997); (CA5 1995). Klevenhagen, v. Alberti 46 F. 3d 1347, 1360 they And involve court orders that leave the State free to pursue English-learning program of its in choice while sisting only up funding plan that the State come with a rationally program is to the related it chooses. These cases closely Goldberg Kelly, are more to akin v. 397 U. S. (1970) (in requiring legislation effect to fund welfare-related process” (Black, hearings); “due cf. at id., 277-279 J., dissent ing), they busing than are to the school cases that followed (1954). Brown v. Board Education, U. 483 S. supra, I said,

As have 487-489, framework that I just filling principles have described, those the Court ne- glects, precisely ap- is the framework that the lower courts plied. Supp. 3d, at 1163; F. 480 F. 1165. In opinions misapplication legal below, I can find no of the these, contrary, standards relevant to cases. To the Appeals’ opinion Court of is true the record and fair majority wrong decision of the District Court. And the conclude otherwise.

Ill If the Court’s criticism of the lower rest courts cannot upon they namely, directly do, what did examine whether produced funding program, Arizona had it rational must upon they namely, rest it what believes did not do, ade- quately changes English-learning in- consider the other peti- struction, administration, and like to which the Indeed, tioners referred. this, Court must believe for “proper courts, orders the lower on remand, conduct important legal changes examination” of “four factual may judgment:” granting of warrant the relief from the (1) methodology” “adoption of a new... instructional (2) teaching English; “Congress’ enactment” No Child (3) in “structural 2001, 20; codified Title Behind Act of Left (4) Nogales,” management in “increased reforms funding.” Ante, at 459. overall education accurately however, that the lower hold, cannot The Court “proper of these conduct a examination” courts failed to three of ibid., them, for the District considered claims, Court petitioners length, at while the nowhere raised in detail and grown remaining argument, sprung from has full which Athena from the brow Zeus. brow, own like Court’s A says “change” that the the lower courts The first “change” “examin[e]” properly of instruc- must consists “bilingual methodology, method education” tional from a providing (teaching Spanish, while at least some classes “ separate English) ‘structured to method instruction (teaching nearly English or all classes in all immersion’” English designed specially curriculum mate- but with a rials). majority suggest that Ante, at 459-461. How can the properly failed to “examine” this matter? the lower courts days 8-day evi- First, than 2 of the District more Court’s precisely dentiary hearing matter, were this devoted petitioners “[t]he namely, pressed the claim below English adoption Immersion” constitutes “substantial assisting” English advancemen[t] learners “to become Hearing English proficient.” in No. Memorandum CV-92- (D. 2007), pp. 4-5. 588, Dkt. No. Ariz., Jan. 596-TUC-RCC acquisition, English Moreno, Irene de- The director of State’s way teach “the most effective” the new method as scribed 2007). (Jan. English. consultant, An educational Tr. 19 petitioners’ agreed. wit- at Id., 95-96. Porter, Rosalie test, the Arizona assessment described new nesses also they Language English Assessment, id., 50-51; Learner systematize in- that would new curricular models described they explained all teach- methods, id., 78; structional eventually required to obtain an “endorsement” be ers would demonstrating expertise their in the chosen instructional Proposed Findings method, see of Fact and Conclusions of (D. 2007), Law in No. Ariz., CV-92-596-TUC-RCC Jan 4, p. they pointed Dkt. showing 593, No. 7; and to data that the percentage Nogales’ English successfully of learners com pleting program recently jumped the had from 1% of such App. students in 2004 to 35% in 2006, to for Pet. Cert. p. 08-289, No. 309. opinion, referring

The District Court in its the to several days hearings, recognized acknowledged of the advances and systems that the State had formulated new with new “stand- oversight public ards, norms for Arizona’s schools and regard English-learning programs. students with to” Supp. expected F. at 2d, 1160. It also that it the indicated prove unnecessary orders would soon as the State had taken “step[s] developing “appropriate” towards” an mech- Cert, App. anism, 08-289, Pet. in No. at 125—a view (D. it later reaffirmed, Order in No. CV-92-596-TUC-RCC 2007), p. Ap- Ariz., 10, Oct. Dkt. No. The Court of peals, opinion acknowledged dispute “may too, in its that the finally nearing be resolution.” 3d, 516 F. at 1180. “many

But, at the same the time, District Court noted that evolving.” the Supp. new standards are still 2d, F. premature at 1160. It “it found that would be to malee an changes.” assessment of some of these Ibid. And it held yet changes that, all, all were not sufficient to warrant Appeals upheld Id., relief. at 1167. The the find- ings discretionary powers and conclusions as within the adding showing Court, District that the evidence significantly completing program more students were was “not reliable.” 516 “further fac- F. at 1157. What findings,” ante, tual are I have ex- needed? As plained, relitigate obligated District Court was not supra, case. See And it find that “the 492-493. did changed primary English-learning has its State model” English instruction F. “to immersion.” structured majority that “fur- conclude Supp. can the 1161. How 2d, at necessary? findings” are ther factual suggest majority Perhaps mean does changes properly to examine these failed lower courts express Perhaps teaching its belief means methods. wrong After conclusion. courts reached that the lower support for “documented, to a academic all, the Court refers significantly English immersion “is that” the view structured bilingual Ante, at 460-461. than education.” more effective majority substitute its see how the can It difficult to question, judgment judgment this on for the District Court’s subsidiary judgment for that includes host however, Rail- that warrant deference. fact-related determinations (“Where way Employees, . there is . . 364 U. at 647-648 S., imponderables be wide discretion there must balance Court”). despite And, in the District considerable evidence improvement, showing was there also considerable evidence way, supported the District Court’s the other evidence “premature” judgment to view that it would be set aside of violation. methodological change in was introduced Arizona

The Nogales progress, “[t]o was a one 2000, late and in work (Jan. 2007); degree 12, or 2005. Tr. 10 another,” of June 2006, As of structured ante, at 459-461. State’s newest yet English taken Tr. 138 models had effect. immersion 2007) (Jan. (“We’re put getting ready hopefully down 17, from”). The had some models districts to choose State only previous year. adopted test its new assessment testimony App. the extent which 164-165. about system Nogales teaching adopted was unclear had the new (Jan. 2007) conflicting. Compare 9, id., Tr. 96 with (Jan. 2007). importantly, there was evidence And, most 12, optimistic improvement in the number students that the considerably English-learning program completing was 2007) (Jan. (stating id., at 37 18, overstated. See dramatic im- in 2005 and when assessment test used provements reported, significantly “rig- had been was less consequently replaced). orous” and had been The State’s firmly own witnesses were unable to conclude that the new system produced significantly improved had so far results. (Jan. 2007) (stating point” Id., at 112-113 that “at some possible quickly system it would be tell how the new leads added)). English proficiency (emphasis conflicting Faced with this evidence, the District Court “premature” concluded that it was to dissolve the decree on (and changes teaching basis related standards and assessment) methodology. underlying Given the factual dis- putes (about, g., reliability method), testing e. how can this now Court hold that the District Court and the appellate legally court that affirmed its conclusions were wrong?

B change says The second that the Court the lower courts properly should “examine” is the “enactment” of the No Left Child Behind Ante, Act. at 461. The concedes, only argument however, that both courts did address the petitioners about that “enactment” namely, that the made, “compliance” automatically with that new law consti- “ ” (f)’s compliance tutes ‘appropriate with subsection action’ requirement. g., App. (arguing Ante, 462; at see e. also, (f)). “preempts” that the new law subsection the And Court (as I) today agrees properly rejected do that the lower courts argument. that Ante, at 462. suggests the wrongly

Instead, Court that the lower courts ways failed to take of account four other in the which new (1) “probative,” namely, Act prompting “significant its (2) programming” changes, structural and its increases (3) funding,” reporting require- “federal “its assessment and (4) policy.” ments,” and its “shift in federal Ante, education at 463-464. In the fact, lower courts did take account of the changes programming, funding (including in structure, funding) English-learning program federal relevant to the supra; Nogales III-A, Part in the State. See and elsewhere agree I with the Court III-D, But, Parts III-C infra. explicitly its dis- not relate the Court did District it account what new nor did take to the Act cussion policy.” Ante, majority a “shift in federal education calls at 464. de- to do the Court now failed what

The District Court (with possible simple ex- No one mands for one reason. legislators, ception their who hint at the matter in Court) argued reply Dis- has ever that the brief filed this any “change.” But take account such trict Court should ante, and n. 12. 463, see supra, explained, 490-491, it is estab-

As I have see well rarely legal a district commits error when lished that court “change” no one to its it fails take account of a called argument reply an or fails to that no one made. attention g., seeking (party from See, Dowell, S., e. at 249 relief U. showing”). judgment make A district must a “sufficient arguments fairly made to but it; court must construe conjure up questions squarely pre- required to never is not Appeals argument referred to an sented. That Court of change resembling the Court’s new assertion does underlying legal no The District committed fact. failing Appeals legal error in to consider it. The Court of properly And could reach the same conclusion. the Govern- referring argument not ask for rever- ment, here, does any or on on basis. that, other, sal remand or surprising, That since the courts have consist is not lower “flexibility ently explicitly cannot used held be moving party dis relieve of its burden to establish that” Thompson Dept. solution is warranted. v. United States (CA4 Housing Development, 220 F. 3d and Urban 2000); Bergenfield, N. Ed., J., 575 F. 2d Marshall v. Board of 1978). (CA3 treating There basis for 423-424 is no exceptional, particu respect in this as somehow these cases any larly publicly that, indicate in since available documents Nogales “‘reaching goals event, is not its own under Title III’” of the Act. Ante, at n. FY12; 2008 Statewide District/Charter Determinations the Title III AMAOs (rev. 2008), http://www.azed.gov/oelas/downloads/ Oct. T3Determinations2008.pdf (showing Nogales that failed to Objec- meet the Act’s “Annual Measurable Achievement progress English-learning tives,” which track the students).

C “change” suggests third that the Court the lower properly courts failed to “examine” consists of “Structural management Nogales.” Ante, reforms at 465. Again, the Court cannot mean that the lower courts failed arguments, to “examine” these for the District Court heard extensive on evidence the matter. The Court itself refers (but some) only to some of the evidence on introduced this point, namely, testimony Cooper, Kelt the former No- gales superintendent, district who said that his administra- policies tive many had or “‘ameliorated eliminated ” glaring inadequacies’ Nogales’ program. most Ante, at 466. The Court also refers to the District Court’s and Court Appeals’ Supp. conclusions about the 2d, matter. 480 F. (“The Nogales success or failure of the of” children depend person”); “should not on” “one 516F. at 1156-1157 (recognizing Nogales had achieved “reforms with lim- pointing showing ited but resources” also to evidence significant “there are still resource and affirm- constraints,” conclusion). ing the District Court’s similar improperly Rather, claims that the lower courts Ante, “discounted” this evidence. 466. But what does the Court mean It “discount”? cannot mean that the possibility lower courts failed to take account of the “might changes brought Nogales[’]” program these have into (f). “compliance” precisely subsection After all, with that is petitioners argued. what the below Intervenor-Defendants’ Closing Argument Memorandum No. CV-92-596-TUC- (D. 2007), pp. 7-18. In- 13, 631, Dkt. No. Ariz., Mar.

RCC have should mean that the lower courts stead the Court must changes, weight significantly e., i. given to the more disagrees conclusion about with the lower courts’ likely changes of No- will have on the success these effect (hence, programs gales’ English-learning on the need for effect). judgment to remain in and orders legal for the Court’s basis It is difficult to understand disagreement The this fact-related matter. evidence about It of some was mixed. consisted before the District Court managerial showing im- reform and administrative evidence Nogales. provement At same Ante, at 465-466. refer, to which the Court does not evidence, time other curing the not come close to shows that these reforms did example, gradua- problem. for that the shows, The record (59%) English-learning was for students tion rate (75%). App. average significantly all below the students performance by English-learning poor stu- It shows compared English-speaking on Arizo- students, with dents, Appendix A, tests. na’s content-based standardized See Nogales’ high particularly at This true sole was infra. out its 629 schools Arizona ranked 575th school—which survey, department at 1159— 516 F. on an educational English-learning passed only students those where 28% Ibid. tests. standardized testimony Za- from Guillermo contains record also Cooper Nogales’ superin-

mudio, who 2005 succeeded numerous “resource- and who described relevant tendent, funding Nogales had Lack of meant related” deficiencies: “emergency long-term rely upon certified” substitute necessary training experience. Tr. 45 without teachers 2007). (Jan. Nogales funding hire needed additional “strong component” of its teachers’ aides —a trained Nogales’ English-learning program, id., 47. And starting salary pay to its teachers it to base needs forced average, making re- difficult the state 14%below about qualified Finally, Id., cruit teachers. at 48. Zamudio said Nogales’ likely lack of resources would lead in the near programs, including future to the cancellation of certain reading program, prevent id., remedial and would providing appropriate school district from class sizes and tu- toring, necessary he which characterized as “essential and English,” for us to be able id., to have our students learn at 75-78.

The Court, District faced with all this evidence, found the management “change” and structural insufficient to warrant say dissolution of its decree. How the can Court that this legal conclusion is unreasonable? What is the basis for con- cluding beyond scope that the District Court acted the of its authority? lawful try fact,

In the Court does not even to claim that the Dis- enigmat- trict Court’s conclusion is unreasonable. Rather, it ically says that the District Court made “insufficient factual findings” support ongoing to the conclusion that an violation By Ante, of law exists. at 468. “insufficient,” the Court Supp. not does mean nonexistent. See 480 at F. 1163- 1164. can findings Nor it mean that the District Court’s skimpy simply were or unreasonable. That court drew con- acknowledged clusions on the basis evidence it was mixed. wrong findings, par- Id., at 1160-1161. What is with those ticularly appropriate if viewed with deference? point says many possible

At one the Court that there “are Nogales’ causes” of difficulties and the that lower courts may explain” to “take into failed account other variables that ongoing Ante, 467, 468, deficiencies. at But to n. 20. plaintiffs find a flaw here is to claim that the have failed negate possibility that these other causes, not the State’s explain Nogales’ poor performance. resource failures, To say ignore this is to well-established law that accords defer- judgments. ence to the District Court’s fact-related See supra, at The 493-494. reflect the Court’s statements ac- knowledgment that the evidence below was mixed. Given acknowledgment, Court did it clear that District finding petitioners had its

not abuse discretion the. “changed it was And circumstances.” sufficient not shown moving party, that com- job, petitioners’ as the show “other pliance Where law has been achieved. with federal present that a viola- to conclude make difficult variables” the District error does exist, or what tion does does moving party has failed that the commit if it concludes Court satisfy that burden? D “change” suggests the lower fourth Court properly “overall in of an did not “examine” consists courts Nogales.” Ante, in the education available crease suggest wrong Again, Dis that the the Court is fully despite matter, trict failed to examine contrary, it made number assertions to Court’s “up-to-date findings,” ante, matter, on the see factual findings Supp. reflect that at 1161-1164. Those 2d, 480 F. developed plan the educational that raised the had an State per typical $3,139 for the student from level amount” “base (in dollars), pupil ante, in $3,570 in 2000to constant (i. plan e., the and that increased additional 468-469, 21; n. available, per English- “weighted”) amount that would be dollars). (in learning to $349 student from $182 plan, explanation of its that this new with State contended forthcoming money federal, be from how the needed would (f)’s require sources, met subsection state, as well as from “resources”) (as “appropriate to action” related ment for upon a mechanism own insistence the District Court’s Appendix rationally B, those resources. See funded infra. “factual-finding” again seems, criticism the Court’s Once disagreement with the lower courts’ to its context, indicate say, argument. That is to seems resolution of this disagree that, even conclusion to the District Court’s with adequate funding, failed to show that new with the State English-learning programs likely resources for would be forthcoming; plan “rationally hence the new was not related” underlying problem. to the resource adequately supports The record, however, the District thing, funding Court’s plan conclusion. For one demon- funding that, strates in 2006, 69% available was tar- geted Appendix at “base level” education, e., see B, infra, i. funding provide it was available with students basic edu- cational services like instruction in mathematics, science, (Jan. 2007). so forth. See Tr. 110 The District Court funding likely found that this would not become available for English-learning programs.

How that is conclusion If unreasonable? these funds are provided provision only services, basic how can the majority particularly now decide that a school district — poor Nogales school district like be able to cover —would expenses English-learning the additional associated with simultaneously managing provide education while for its par- students’ basic educational needs? Indeed, idea is ticularly impractical applied Nogales, when to a district like high percentage which has a of students re- who need extra (approximately sources. See 516 F. at 1145 90% Nogales’ English- students were, been, or had enrolled 2006). learning program majority Where vast help” students in a district are those who “need extra which money,” imagine “costs extra difficult where one could untapped an find stream that could cover those additional costs. thing, petitioners’

For another witnesses conceded that yet likely the State had not determined the costs school teaching English using the districts of learners structured (Jan. English g., immersion method. e. Tr. 199-200 See, 2007). recently legislators reported that the State had force to the extra costs associated asked task “determine” implementing English immersion model. with the structured Speaker’s Opening Appellate Brief in No. 07-15603 etc. concluded its But task force had not

(CA9), yet that p. work. por the federal

Further, the District Court doubted be the would tion identified by petitioners characterized It available for English-learning programs. cal in the certain included grant money, petitioners’ federal as funds, culus of “short-term” providing only available . 2d, F. at 1161 And sistance, testimony Supp. identi that some the funds indicated evidentiary hearing to No not in fact be available fied petitioners might 2007). (Jan. It noted 59-61 also schools. Tr. See gales’ that no restricted, meaning particu that certain funds were for more from them lar child could benefit English-learning stu fact English-learning than two years despite— four to five in years in average dents Nogales'on spend have will 2d, (Nogales 480 F. at 1163-1164 program. Supp. remain to cover who to “dilute” the funds students provided years). learners for more than two English law, imposes the court to federal which Finally, pointed use a large restriction State to forbidding portion (what be) available funds the State’s considered plan i. e., or the manner “supplant,” State proposed, have otherwise the funds the would for, substitute State Id., also C. see 20 U. S. 1162; on the spent program. The District 6315(b)(3), 6613(f), 6314(a)(2)(B), 6825(g). §§ in large was concluded that the State’s funding plan Court this In reaching of this restriction. unworkable part light testi- upon relied conclusion, District part a former United States Department of Thomas mony Fagan, of fed- this and an on “expert” type of Education employee awas plan that Arizona’s testified eral funding. Fagan “ ” result which could laws, of the relevant ‘blatant violation’ funds— in federal of over million in a loss to the State $600 would provide funds the State’s plan those federal including 480 F. at 1163. Supp. learners. English

509 says analysis just The Court I that the described, have and engaged, in which legal the court amounts to “clear error.” Ante, at 469. What error? Where is the error? Court say opinion does earlier in its that the lower courts “should (i. “disregarded” not” have the relevant e., federal No Child Act) “just they Left Behind funds because are not state funds.” Ante, at 463. But District did not disre- gard “just they those funds because are not state funds.” “foreclos[e] possibility did petitioners Nor it that could” by pointing show entitlement to relief to “an overall increase funding.” in education Ante, at 469. Rather, the District potentially Court treated those increased funds as unavail- primarily planned able, because their use would violate thereby federal law would threaten the State with total funding planned loss of the stream of federal it to use. It “ plan concluded that the State’s amounted to ‘ablatant viola- ” potential tion’ of law, federal remarked “the loss Supp. of federal funds is substantial.” 480 at F. “disregard[ing]” Is there a better reason for those funds? may The Court have other “errors” in mind as well. It say, opinion, does earlier in its that some believe that “in- funding improve creased alone achieve- does student added), (emphasis ment,” ante, nine refers suggest always studies that does not increased help, ante, see 467, see also Brief for 464-465,. 17-19; nn. (discuss- Educational-Policy 7-11 Scholars as Amici Curiae ing scholarship). such I not know what this has to do do today’s with the if decision, matter. But it is relevant to many Court should also refer to the studies cast doubt upon g., See, e. H. & the results of the it cites. Ladd studies Money Financing Making J. America’s Hansen, Matter: (1999); Understanding Achievement Hess, Schools 140-147 (and Other) Changes Chicago School Educ. Reform, Under (1999); Analysis Payne, Pol’y Eval. & & School Card Spending, and Reform, Finance The Distribution School 83 Pub. Econ. Scores, J. the Distribution of Student Test “Meaningful” Poverty, (2002); Educational Rebell, 67 see also Necessary Opportunity, Courts, 85 the Role of. the and Hedges, (2007); L. & Greenwald, R. L. Rev. N. C. on The of School Student Effect Resources Laine, R. (1996). Achievement, Rev. Educ. Res. per- improved funding plan

Regardless, of the relation through for this Court decide is not an issue formance complex writings of a to the of one side footnote references question has expert the The here is whether State debate. “change” funding program to a its amounts shown that new (f)’s requirement. The District subsection that satisfies says Nothing doubt this Court casts Court found not. did validity legal the of that conclusion. on

IV remaining well founded. criticisms are not The Court’s Appeals example, for for criticizes the Court Court, The having Rule that “warrant to the “circumstances” referred ” 60(b)(5) having petition ‘likely the rare,’ for said relief as ‘‘sweepaway” “fund the District Court’s ers have to would having spoken prevail, ing for determination” order jus radically changed being “landscape” as to not “so compliance,” tify judgment hav from without relief “close[ness]” ing its review for somewhat diminished board of edu the State its concerns” because “federalism place.” injunction . Ante, at to remain cation “wish (first, emphases internal added; second, and fourth 451-452 omitted). quotation marks explain the in which however, context does not Court,

. appeared. court Appeals’ That statements the Court particular (“likely phrase rare”) to refer to its first used namely, complete sought, State of modification kind judgment’s original judgment, if ob- even relief from the fully 3d, yet 1167; jective 516 F. achieved. was §60.47[2][c]. Moore far I cf. As as know it is “rare” indeed prior judgment that “a is so undermined later circum- inequitable” stances as to render its continued enforcement though compliance judgment’s legal even with the determi- nation has not occurred. 516 F. at 1167. At least, point Court does not to other instances that make it common. “sweeping” change” “radica[l] Uses words in con- text refer to the deference owed to the District Court’s 2000 legal (describing id., determination. See at 1168 the 2000 English-learning “pro- order’s “basic determination” that grams require substantial state addition spent programming”). on basic educational If there is an (which 492-494), supra, error I see doubt, error one of not of tone, law. any legal

Nor Ido see error that could have made a differ- Appeals downplay ence when the Court of said it should the importance of federalism concerns because some elements of government support judgment. Arizona’s state the I do not legal majority’s know the basis for the reference to this re- judicial “flatly calibration of distance incorrect,” if but, it wrong, recalibrating I do still not see how the recalibration could matter. majority’s

In sum, the decision to set aside the lower court (1) upon wedge decisions rests a mistaken effort to drive a (a) (b) changes plan between review of review changes bring compliance of that would the State into with (2) supra; misguided attempt law, federal Part I, to show applied wrong legal that the lower courts the standards, (3) supra; Part II, a mistaken belief that the lower courts specific supra; made errors, III, four fact-based Part (4) supra a handful criticisms, IV, of minor Part and this By page. tracing each of these criticisms its source unjustified. I record, have tried to show that each is separately together, they Whether taken or cannot warrant setting Appeals’ aside the Court of decision.

V says totally separate “unclear” it is matter, the Court As a improperly in- statewide ordered whether District Court Nogales. confining junctive relief to that relief instead injunction to vacate the And it orders District Court Nogales” beyond finds the court unless “insofar as extends (f) violating” statewide “on a that “Arizona is subsection Ante, at 472. basis.” majority’s part legal support this

What is the appearance opinion? in this these cases Prior to the Nothing in the that modification. Court, no one asked for clearly erro- know, far as the relief somehow law, as I makes recognizes, majority that the reason as the Indeed, neous. injunction Arizona, runs is that the State statewide litigation, that to enter in the asked the Court defendant pointed support a state constitutional The State relief. provision requiring uniformity. ante, at See educational anyone disputed whether 471. There is no indication scope. injunction A statewide have statewide should Nogales’ App. program 13-14, ¶¶40, 42; students, harmed in the law relief. What and the wanted statewide State makes this relief erroneous? majority says must consider that the District Court “[petitioners oral made it clear at

this matter because the argument they argue the extension of wish to Nogales remedy be vacated.” to other than should districts I less clear. would Ante, 23. I find the matter n. transcript, argument which oral direct the reader part: reads in this here . What was entered

“MR. . . STARR: extraordinary, is that entire it so order, which makes by interfered with has been mechanism State Nogales.... out in This case started order. agree with that. Well, I—I “JUSTICE SCALIA: a lawsuit a mistake to extend I think it was vast applied only Nogales to the State, whole but the State attorney general wanted that done.

“MR. But STARR: we should be now able to— “JUSTICE SC ALIA: But that’s—that’s water over the dam. That’s not what this suit is about now.” Arg. Tr. of Oral

Regardless, legal what is the basis for the Court’s order tell- ing the District it Court must reconsider the matter? There

is no clear error. No one has asked the District Court scope primarily question modification. And the of relief is a for the Charlotte-Mecklenburg District Court. Swann v. (“Once (1971) right Ed., Bd. U. a S. viola- a scope equitable tion have shown, been of a district court’s powers remedy past wrongs is broad, for breadth and remedies”). flexibility equitable are inherent in VI length opinions require As the these indicates, cases highly us to a read detailed record. Members of this Court have reached different conclusions about what that record says. But there is more to the case than that. simply

First, even if one sees these cases technical record-reading disagreement among why case, us shows ordinarily this Court should hesitate to hear cases that re quire lengthy us to do no more than to review a sim record ply to determine whether a lower court’s fact-based determi nations Camera, are correct. Cf. Universal at 488 S., U. (“[A] may displace” fairly [not] court a “choice between two conflicting though justifiably views, even the court would have been made different choice had the matter before novo”); Mfg. de Air Products Graver Tank & Co. v. Linde (1949)(noting Co., 271, 275 336 S. rule that U. well-settled findings this will concurrent not “undertake review very fact two courts below in the absence of obvious error”). showing exceptional appellate In cases, such fray, reach to conclusions to the better able are closer courts likely trial to treat and are more record, are to the that true clearly fairly respect is and with determinations court —as here. so goes beyond technical as the

Second, insofar Court applies aspects a review new of these cases and record-based problems frame- cases. The future it risks framework, legal support incomplete applies clear and lacks is work to explanation. for And be difficult lower courts it will or particularly apply if it framework, and to that understand litiga- reform on a distinction between “institutional rests litigation. to the Court mean forms of Does tion” other beyond go say, example, their must, own, for that courts on legal relitigate underlying party’s vio- an own demands and injunc- party an asks modification of lation whenever supra, practice? could such a rule work in See tion? How suggest there are mean Does to 492-494. Court govern special, prodefendant review rules other strict cases”? decisions in “institutional reform of district court precisely “in- an are rules? And when is case What those show, have all, After as I tried stitutional reform” case? easily supra, fit- cannot be 489-490, the cases before us see onto Procrustean “institutional reform” bed. ted the Court’s express may opinion atti- its an Third, the Court mean cautioning judges to take care when enforcement tude, significant impose will financial burdens of federal statutes upon not a rule of law. attitude, however, An States. vacating any point toward the Court Nor does such attitude Appeals’ opinion makes clear that the here. record supra, at And the take care. See District Court did producing Appeals proceeded care, de- too with Court opinion record and fair to that is both true tailed parties’ I do court to the well. lower submissions judges require lower court how this can now see greater yet greater proceed caution, with even care, to take

515 expecting while at the same time those courts to enforce the Congress statute as intended.

Finally, acknowledge we cannot and should not fail to underlying subject proceeding. matter of this These cases rights Spanish-speaking concern attending students, public English school near border, the Mexican to learn country English order to live their lives in a where is the predominant language. nearly In a Nation where 47 million (18% people population) speak language than other English Dept. home, Commerce, U. S. Economics and Statistics Admin., Bureau, Census Lan Census Brief: (Oct. guage 2003), English-Speaking Ability Use and it is important losing ensure children, those without heritage language cultural embodied in the birth, their English-language they nonetheless receive the tools need to society participate in language where that second “serves as the fundamental medium of social interaction” and demo participation. Rodriguez, Language Participa cratic and (2006). way linguistic tion, 94 L. Cal. Rev. In that diversity complement support, can rather than under mine, our democratic Id., institutions. at 688. Congress

At least, that is what when it decided set federal doing standards that state officials must In so, meet. with- denying importance out of the role of state and local judges, including officials, it also created role for federal judges comply who must see that the with those States fed- Unfortunately, eral standards. I reasons have forth, set supra, opinion II, Part see Court’s will make more for federal difficult courts to enforce those federal standards. ago, Congress put statutory provision Three decades this place systems help to ensure our Nation’s school will non-English-speaking language schoolchildren overcome the might participation hinder barriers their in our coun- try’s workplaces, everyday schools, institutions of government, politics through e., i. the “arenas which supra, Rodriguez, daily lives.” citizens live their most increase diffi- that the decision will 694. I fear Court’s overcoming culty us. that threaten to divide barriers respectfully opinion, I in this the reasons set forth For dissent.

APPENDIXES

A PERFORMANCE ON CONTENT-BASED ASSESSMENT 2006*

TESTS —SPRING MATH GRADE ELL STUDENTS NON-ELL AND

PASSING EXAM 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 NON-ELL AND

PASSING EXAM RECLASSIFIED STUDENTS

PASSING EXAM 3 40% 92% 4 19% 83% 81% 5 22% 6 14% 76% 7 13% 74% 8 31% 73%

WRITING GRADE ELL STUDENTS AND NON-ELL

PASSING EXAM RECLASSIFIED STUDENTS

PASSING EXAM _82%_ 3 52% 4 52% _87%_ 5 34% _80%_ 6 71% _97%_ _98%_ 7 66% _ _94%_ 8 49% Cert, 08-289, p. *App. Pet. for in No.

518

B UNIFIED TO NOGALES AVAILABLE FUNDING PER STUDENT* DISTRICT, SCHOOL 2006- 2005- 2003- 2004- 1999- 2000- 2002- 2001- TYPE 2006 2007 2005 2002 2003 2004 2001 $3,039 $3,173 $2,929 $2,858 $2,721 $2,788 $2,618 $2,592 Base level $349 $365 $337 $321 $329 $163 $157 ELL funds $156 Other $0 $74 ELL $64 $0

state $126 $0 $0 funds

Federal I $603 $597

Title $638 $487 $467 $449 $439 $448 funds

Federal II $92 $87 $101 $109

Title $91 $63 $74 funds

Federal III Title $114 $118 $121 $0 $89 $0 $0 $67 (ELL) funds

State $109 $214 $205 federal $47 $207 $56 $59 $58 grants $4,406 $4,6052 $4,387 $3,899 $4,162 $3,484 $3,302 $3,342 TOTAL Constant $4,477 $4,529 $4,406 $4,442 $3,904 $4,272 $3,804 $3,866 dollars (2006)3 ELL Total $639 $515 $467 $501 $163 $514 $157 $156 funds (CA9 for Cert. 2008); App. Pet. 1140, 1159-1160 F. 3d *516 08-289, pp. 42-43. No. average pro than the per-pupil less Nogales received highest, at Jersey provided New by every State in the Nation. vided Digest. third-lowest, $6,515. 2008 $14,954;Arizona the per $43.43 additional provided an funds 2007, county override ofAs F. at 1158. See 516 student. Price Index. the Consumer based on dollars Constant

Case Details

Case Name: Horne v. Flores

Court Name: Supreme Court of the United States

Date Published: Jun 25, 2009

Citation: 557 U.S. 433

Docket Number: 08-289

Court Abbreviation: SCOTUS