BREYER, J., DISSENTING
HORNE V. FLORES
557 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NOS. 08-289 AND 08-294
THOMAS C. HORNE, SUPERINTENDENT, ARIZONA PUBLIC
INSTRUCTION, PETITIONER
08–289
v.
MIRIAM FLORES et al.
SPEAKER OF THE ARIZONA HOUSE OF REPRE-
SENTATIVES, et al., PETITIONERS
08–294
v.
MIRIAM FLORES et al.
on writs of certiorari to the united states
court of appeals for the ninth circuit
[June 25, 2009]
Justice Breyer, with
whom Justice Stevens, Justice Souter, and Justice Ginsburg join,
dissenting.
The Arizona Superintendent of
Public Instruction, the President of the Arizona Senate, and the
Speaker of the Arizona House of Representatives (petitioners here)
brought a Federal Rule of Civil Procedure 60(b)(5) motion in a
Federal District Court asking the court to set aside a judgment
(and accompanying orders) that the court had entered in the year
2000. The judgment held that the State of Arizona’s plan for
funding its English Language Learner program was arbitrary, and
therefore the State had failed to take “appropriate action to
overcome language barriers that impede equal participation by its”
Spanish-speaking public school students “in its instructional
programs.” 20 U. S. C. §1703(f);
Castaneda v.
Pickard, 648 F. 2d 989, 1010 (CA5 1981) (interpreting
“appropriate action” to include the provision of “necessary”
financial and other “resources”). The moving parties argued that
“significant change[s] either in factual conditions or in law,”
Rufo v.
Inmates of Suffolk County Jail,
502 U. S. 367, 384
(1992), entitled them to relief. The State of Arizona, the Arizona
Board of Education, and the original plaintiffs in the case
(representing students from Nogales, Arizona) opposed the
superintendent’s Rule 60(b)(5) motion. They are respondents
here.
The District Court, after taking evidence and
holding eight days of hearings, considered all the changed
circumstances that the parties called to its attention. The court
concluded that some relevant “changes” had taken place. But the
court ultimately found those changes insufficient to warrant
setting aside the original judgment. The Court of Appeals, in a
carefully reasoned 41-page opinion, affirmed that district court
determination. This Court now sets the Court of Appeals’ decision
aside. And it does so, it says, because “the lower courts focused
excessively on the narrow question of the adequacy of the State’s
incremental funding for [English-learning] instruction instead of
fairly considering the broader question, whether, as a
result of important changes during the intervening years, the State
was fulfilling its obligation” under the Act “by other means.”
Ante, at 2 (emphasis added).
The Court reaches its ultimate conclusion—that
the lower courts did not “
fairly consider” the changed
circumstances—in a complicated way. It begins by placing this case
in a category it calls “institutional reform litigation.”
Ante, at 10. It then sets forth special “institutional
reform litigation” standards applicable when courts are asked to
modify judgments and decrees entered in such cases. It applies
those standards, and finds that the lower courts committed
error.
I disagree with the Court for several reasons.
For one thing, the “institutional reform” label does not easily fit
this case. For another, the review standards the Court enunciates
for “institutional reform” cases are incomplete and, insofar as the
Court applies those standards here, they effectively distort Rule
60(b)(5)’s objectives. Finally, my own review of the record
convinces me that the Court is wrong regardless.
The lower
courts did “fairly consider” every change in circumstances that the
parties called to their attention. The record more than
adequately supports this conclusion. In a word, I fear that the
Court misapplies an inappropriate procedural framework, reaching a
result that neither the record nor the law adequately supports. In
doing so, it risks denying schoolchildren the English-learning
instruction necessary “to overcome language barriers that impede”
their “equal participation.” 20 U. S. C. §1703(f).
I
A
To understand my disagreement
with the Court, it is unfortunately necessary to examine the record
at length and in detail. I must initially focus upon the Court’s
basic criticism of the lower courts’ analysis, namely that the
lower courts somehow lost sight of the forest for the trees. In the
majority’s view, those courts—as well as this dissent—wrongly
focused upon a subsidiary matter, “incremental” English-learning
program “funding,” rather than the basic matter, whether “changes”
had cured, or had come close to curing, the violation of federal
law that underlay the original judgment.
Ante, at 2. In
the Court’s view, it is as if a district court, faced with a motion
to dissolve a school desegregation decree, focused only upon the
school district’s failure to purchase 50 decree-required school
buses, instead of discussing the basic question, whether the
schools had become integrated without need for those 50 buses.
Thus the Court writes that the
lower courts focused so heavily on the original decree’s
“incremental funding” requirement that they failed to ask whether
“the State was fulfilling its obligation under” federal law “by
other means.”
Ibid. And the Court frequently criticizes
the Court of Appeals for having “focused almost exclusively on the
sufficiency of incremental funding,”
ante, at 15; for
“confining the scope of its analysis to” the “incremental funding
requirement,”
ante, at 16; for having “asked only whether
changed circumstances affected [English-learning] funding and, more
specifically … incremental funding,”
ante, at 17; for
inquiring only “into whether the deficiency in … incremental
funding that the District Court identified in 2000 had been
remedied,”
ibid.; and (in case the reader has not yet
gotten the point) for “focusing so intensively on Arizona’s
incremental … funding,”
ante., at 18. The Court adds that
the District Court too was wrong to have “asked only whether
petitioners had satisfied the original declaratory judgment order
through increased incremental funding.”
Ante, at 19.
The problem with this basic criticism is that
the State’s provision of adequate resources to its English-learning
students,
i.e., what the Court refers to as “incremental
funding,” has always been the basic contested issue in this case.
That is why the lower courts continuously focused attention
directly upon it. In the context of this case they looked directly
at the forest, not the trees. To return to the school desegregation
example, the court focused upon the heart of the matter, the degree
of integration, and not upon the number of buses the school
district had purchased. A description of the statutory context and
the history of this case makes clear that the Court cannot sensibly
drive a wedge (as it wishes to do) between what it calls the
“incremental funding” issue and the uncured failure to comply with
the requirements of federal law.
1
The lawsuit filed in this case
charged a violation of subsection (f) of §204 of the Equal
Educational Opportunities Act of 1974, 88 Stat. 515, 20 U.
S. C. §1703(f). Subsection (f) provides:
“No State shall deny equal educational opportunity
to an individual on account of his or her race, color, sex, or
national origin by
. . . . .
“(f) the failure by an educational agency to take appropriate
action to overcome language barriers that impede equal
participation by its students in its instructional programs.”
The provision is part of a broader Act that
embodies principles that President Nixon set forth in 1972, when he
called upon the Nation to provide “equal educational opportunity to
every person,” including the many “poor” and minority children long
“doomed to inferior education” as well as those “
who start
their education under language handicaps.” See Address to the
Nation on Equal Educational Opportunity and Busing, 8 Weekly Comp.
of Pres. Doc. 590, 591 (emphasis added) (hereinafter Nixon
Address).
In 1974, this Court wrote that to provide all
students “with the same facilities, textbooks, teachers, and
curriculum” will “effectively
foreclos[e]” those
“
students who do not understand English … from any meaningful
education,” making a “mockery of public education.”
Lau v.
Nichols,
414 U. S. 563, 566
(emphasis added). The same year Congress, reflecting these
concerns, enacted subsection (f) of the Act—a subsection that seeks
to “remove language … barriers” that impede “true equality of
educational opportunity.” H. R. Rep. No. 92–1335, p. 6
(1972).
2
In 1981, in
Castaneda v.
Pickard, 648 F. 2d 989, the Court of Appeals for the
Fifth Circuit interpreted subsection (f). It sought to construe the
statutory word “appropriate” so as to recognize both the obligation
to take account of “the need of limited English speaking children
for language assistance” and the fact that the “governance” of
primary and secondary education ordinarily “is properly reserved to
… state and local educational agencies.”
Id., at 1008,
1009.
The court concluded that a court
applying subsection (f) should engage in three inquiries.
First, the court should “ascertain” whether the school
system, in respect to students who are not yet proficient in
English, “is pursuing” an English-learning program that is
“informed by an educational theory recognized as sound by some
experts in the field or, at least, deemed a legitimate experimental
strategy.”
Ibid. Second, that court should
determine “whether the programs and practices actually used by
[the] school system are reasonably calculated to implement
effectively the educational theory adopted by the school,” which is
to say that the school system must “
follow through with
practices, resources and personnel necessary to transform” its
chosen educational theory “
into reality.”
Id., at
1010 (emphasis added).
Third, if practices, resources, and
personnel are adequate, the court should go on to ascertain whether
there is some indication that the programs produce “results,”
i.e., that “the language barriers confronting students are
actually being overcome.”
Ibid.
Courts in other Circuits have followed
Castaneda’s approach. See,
e.g.,
Gomez
v.
Illinois State Bd. of Educ., 811 F. 2d 1030, 1041
(CA7 1987);
United States v.
Texas, 680
F. 2d 356, 371 (CA5 1982);
Valeria G. v.
Wilson, 12 F. Supp. 2d 1007, 1017–1018 (ND Cal 1998).
No Circuit Court has denied its validity. And no party in this case
contests the District Court’s decision to use
Castaneda’s
three-part standard in the case before us.
3
The plaintiffs in this case are a
class of English Language Learner students,
i.e., students
with limited proficiency in English, who are enrolled in the school
district in Nogales, a small city along the Mexican border in
Arizona in which the vast majority of students come from homes
where Spanish is the primary language. In 1992, they filed the
present lawsuit against the State of Arizona, its Board of
Education, and the superintendent, claiming that the State had
violated subsection (f), not by failing to adopt proper
English-learning programs, but by failing “to provide
financial
and other resources necessary” to make those programs a
practical reality for Spanish-speaking students. App. 7, ¶20
(emphasis added); see
Castaneda,
supra, at 1010
(second,
i.e., “resource,” requirement). In particular,
they said, “[t]he cost” of programs that would allow those students
to learn effectively, say, to read English at a proficient level,
“far exceeds the only financial assistance the State theoretically
provides.” App. 7, ¶20(a).
The students sought a declaration
that the State had “systematically … failed or refused to provide
fiscal as well as other resources sufficient to enable” the Nogales
School District and other “similarly situated [school] districts”
to “establish and maintain” successful programs for English
learners.
Id., at 10, ¶28. And they sought an appropriate
injunction requiring the provision of such resources.
The state defendants answered the complaint. And
after resolving disagreements on various subsidiary issues, see
id., at 19–30, the parties proceeded to trial on the
remaining disputed issue in the case, namely whether the State and
its education authorities “
adequately fund and oversee”
their English-learning program. 172 F. Supp. 2d 1225, 1226
(Ariz. 2000) (emphasis added).
In January 2000, after a three-day bench
trial, the District Court made 64 specific factual findings,
including the following:
(1) The State assumes that its school
districts need (and will obtain from local and statewide sources)
funding equal to a designated “base level amount” per
child—reflecting the funding required to educate a “typical”
student, 516 F. 3d 1140, 1147 (CA9 2008)—along with an
additional amount needed to educate each child with special
educational needs, including those children who are not yet
proficient in English. 172 F. Supp. 2d, at 1227–1228.
(2) In the year 2000, the “base level amount”
the State assumed necessary to educate a typical child amounted to
roughly $3,174 (in year 2000 dollars).
Id., at 1227.
(3) A cost study conducted by the State in
1988 showed that, at that time, English-learning programming cost
school districts an additional $424 per English-learning child.
Id., at 1228. Adjusted for inflation to the year 2000, the
extra cost per student of the State’s English-learning program was
$617 per English-learning child.
(4) In the year 2000, the State’s funding
formula provided school districts with only $150 to pay for the
$617 in extra costs per child that the State assumed were needed to
pay for its English-learning program.
Id., at 1229.
The record contains no suggestion that
Nogales, or any other school district, could readily turn anywhere
but to the State to find the $467 per-student difference between
the amount the State assumed was needed and the amount that it made
available. See
id., at 1230. Nor does the record contain
any suggestion that Nogales or any other school district could have
covered additional costs by redistributing “base level,”
typical-child funding it received. (In the year 2000 Arizona,
compared with other States, provided the third-lowest amount of
funding per child. U. S. Dept. of Education, Institute of Education
Sciences, National Center for Education Statistics, T. Snyder, S.
Dillow, & C. Hoffman, Digest of Education Statistics 2008, Ch.
2, Revenues and Expenditures, Table 184,
http://nces.ed.gov/pubs2009/2009020.pdf (hereinafter 2008 Digest)
(all Internet materials as visited June 23, 2009, and available in
Clerk of Court’s case file).)
Based on these, and related findings, the
District Court concluded that the State’s method of paying for the
additional costs associated with English-learning education was
“arbitrary and capricious and [bore] no relation to the actual
funding needed.” 172 F. Supp. 2d, at 1239. The court added
that the State’s provision of financial resources was “not
reasonably calculated to effectively implement” the
English-learning program chosen by the State.
Ibid. Hence,
the State had failed to take “appropriate action” to teach English
to non-English-speaking students, in that it had failed (in
Castaneda’s words) to provide the “practices, resources,
and personnel” necessary to make its chosen educational theory a
“reality.”
Id., at 1238–1239; see also §1703(f);
Castaneda, 648 F. 2d, at 1010.
The District Court consequently entered
judgment in the students’ favor. The court later entered
injunctions (1) requiring the State to “prepare a cost study to
establish the proper appropriation to effectively implement” the
State’s own English-learning program, and (2) requiring the State
to develop a funding mechanism that would bear
some
“
reasonabl[e]” or “
rational relatio[n] to the
actual funding needed” to ensure that non-English-speaking students
would “achieve mastery” of the English language. See,
e.g., 160 F. Supp. 2d 1043, 1045, 1047 (Ariz. 2000);
No. CV–92–596–TUCACM, 2001 WL 1028369, *2 (D. Ariz., June 25, 2001)
(emphasis added).
The State neither appealed nor complied with
the 2000 declaratory judgment or any of the injunctive orders.
When, during the next few years, the State failed to produce either
a study of the type ordered or a funding program rationally related
to need for financial resources, the court imposed a series of
fines upon the State designed to lead the State to comply with its
orders. 405 F. Supp. 2d 1112, 1120 (Ariz. 2005).
In early 2006, the state legislature began to
consider HB 2064, a bill that, among other things, provided for the
creation of a “Task Force” charged to develop “cost-efficient”
methods for teaching English. The bill would also increase the
appropriation for teaching English to students who needed to learn
it (though it prohibited the spending of any increase upon any
particular student for more than two years). In March 2006, the
petitioners here (the Arizona Superintendent of Public Instruction,
the President of Arizona’s Senate, and the Speaker of its House of
Representatives) asked the District Court (1) to consider whether
HB 2064, as enacted, would satisfy its judgment and injunctive
orders, (2) to forgive the contempt fine liability that the State
had accrued, and (3) to dissolve the injunctive orders and grant
relief from the 2000 judgment. Motion of Intervenors to Purge
Contempt, Dissolve Injunctions, Declare the Judgment and Orders
Satisfied, and Set Aside Injunctions as Void, No. CV–92–596–TUC–RCC
(D. Ariz.), Dkt. No. 422, pp. 1–2 (hereinafter Motion to
Purge).
The dissolution request, brought under Rule
60(b)(5), sought relief in light of changed circumstances.
The
“significant changed circumstances” identified amounted to changes
in the very circumstances that underlay the initial finding of
violation, namely Arizona’s funding-based failure to provide
adequate English-learning educational resources. The moving
parties asserted that “Arizona has poured money” into Nogales as a
result of various funding changes,
id., at 5. They pointed
to a 0.6% addition to the state sales tax; the dedication of a
portion of the State’s share of Indian gaming proceeds to Arizona
school districts; to the increase in federal funding since 2001;
and to HB 2064’s increase in state-provided funding.
Id.,
at 5–8. The parties said that, in light of these “dramatic”
additions to the funding available for education in Arizona, the
court should “declare the judgment and orders satisfied, and …
relieve defendants from the judgment and orders under Rule
60(b)(5).”
Id., at 8.
In April 2006, the District Court held that HB
2064 by itself did not adequately satisfy the court’s orders; it
denied the request to forgive the fines; but it did not decide the
petitioners’ Rule 60(b)(5) motion. In August 2006, the Court of
Appeals ordered the District Court to decide that motion, and, in
particular, to consider whether changes to “the landscape of
educational funding … required modification of the original court
order or otherwise had a bearing on the appropriate remedy.” 204
Fed. Appx. 580, 582 (CA9 2006) (memorandum).
In January 2007, the District Court held a
hearing that lasted eight days and produced an evidentiary
transcript of 1,684 pages. The hearing focused on the changes that
the petitioners said had occurred and justified setting aside the
original judgment. The petitioners pointed to three sets of changed
circumstances—all related to “practices, resources, and
personnel”—which, in their view, showed that the judgment and the
related orders were no longer necessary. They argued that the
changes had brought the State into compliance with the Act’s
requirements. The three sets of changes consisted of (1) increases
in the amount of funding available to Arizona school districts; (2)
changes in the method of English-learning instruction; and (3)
changes in the administration of the Nogales school district. These
changes, the petitioners said, had cured the resource-linked
deficiencies that were noted in the District Court’s 2000 judgment,
172 F. Supp. 2d, at 1239, and rendered enforcement of the
judgment and related orders unnecessary.
Based on the hearing and the briefs, the
District Court again found that HB 2064 by itself did not cure the
“resource” problem; it found that all of the changes,
resource-related and otherwise, including the new teaching and
administrative methods, taken together, were not sufficient to
warrant setting aside the judgment or the injunctive orders; and it
denied the Rule 60(b)(5) motion for relief. 480 F. Supp. 2d
1157, 1164–1167 (Ariz. 2007). The Court of Appeals affirmed the
District Court’s conclusions, setting forth its reasons, as I have
said, in a lengthy and detailed opinion. The state superintendent,
along with the Speaker of the Arizona House of Representatives and
the President of the Arizona Senate, sought certiorari, and we
granted the petition.
B
Five conclusions follow from the
description of the case I have just set forth. First, the Rule
60(b)(5) “changes” upon which the District Court focused included
the “changed teaching methods” and the “changed administrative
systems” that the Court criticizes the District Court for ignoring.
Compare
ante, at 23–25, 29–31, with Parts III–A, III–C,
infra. Those changes were, in the petitioners’ view,
related to the “funding” issue, for those changes reduced the need
for increased funding. See Motion to Purge, p. 7. I concede
that the majority of the District Court’s factual findings focused
on funding, see
ante, at 20. But where is the
legal
error, given that the opinion clearly shows that the District
Court considered, “ ‘focus[ed]’ ” upon, and wrote about
all the matters petitioners raised?
Ibid.; 480
F. Supp. 2d, at 1160–1161.
Second, the District Court and
the Court of Appeals focused more heavily upon “incremental
funding” costs, see
ante, at 15–20, for the
reason that the State’s provision for those
costs—
i.e., its provision of the resources necessary to
run an adequate English-learning program—was the basic contested
issue at the 2000 trial and the sole basis for the District Court’s
finding of a statutory violation. 172 F. Supp. 2d, at 1226.
That is, the sole subsection (f) dispute in the case originally was
whether the State provides the “practices, resources, and personnel
necessary” to implement its English-learning program.
Castaneda, 648 F. 2d, at 1010. To be sure, as the
Court points out, changes other than to the State’s funding system
could demonstrate that Nogales was receiving the necessary
resources. See,
e.g.,
ante, at 23–25. But given
the centrality of “resources” to the case, it is hardly surprising
that the courts below scrutinized the State’s provision of
“incremental funding,”
but without ignoring the other
related changes to which petitioners pointed, such as changes in
teaching methods and administration (all of which the District
Court rejected as insufficient). See Part III,
infra.
Third, the type of issue upon which the
District Court and Court of Appeals focused lies at the heart of
the statutory demand for equal educational opportunity. A State’s
failure to provide the “practices, resources, and personnel
necessary” to eliminate the educational burden that accompanies a
child’s inability to speak English is precisely what the statute
forbids. See
Castaneda,
supra, at 1010
(emphasizing the importance of providing “resources”); Nixon
Address 593 (referring to the importance of providing “financial
support”). And no one in this case suggests there is no need for
those resources,
e.g., that there are no extra costs
associated with English-learning education irrespective of the
teaching method used. English-learning students, after all, not
only require the instruction in “academic content areas” like math
and science that “typical” students require, but they also need to
increase their proficiency in speaking, reading, and writing
English. This language-acquisition instruction requires particular
textbooks and other instructional materials, teachers trained in
the school’s chosen method for teaching English, special assessment
tests, and tutoring and other individualized instruction—all of
which resources cost money. Brief for Tucson Unified School
District et al. as
Amici Curiae 10–13; Structured
English Immersion Models of the Arizona English Language Learners
Task Force, http://www.ade.state.az.us/ ELLTaskForce/
2008/SEIModels05–14–08.pdf (describing Arizona’s requirement that
English-learning students receive four hours of
language-acquisition instruction per day from specially trained
teachers using designated English-learning materials); Imazeki,
Assessing the Costs of Adequacy in California Public Schools, 3
Educ. Fin. & Pol’y 90, 100 (2008) (estimating that
English-learning students require 74% more resources than typical
students). That is why the petitioners, opposed as they are to the
District Court’s judgment and orders, admitted to the District
Court that English learners “need extra help and that costs extra
money.” See 480 F. Supp. 2d, at 1161.
Fourth,
the “resource” issue that the
District Court focused upon when it decided the Rule 60(b)(5)
motion, and
the statutory subsection (f) issue that lies
at the heart of the court’s original judgment (and the plaintiffs’
original complaint) are not
different issues, as the Court
claims. See
ante, at 21–22. Rather in all essential
respects
they are one and the same issue. In focusing upon
the one, the District Court and Court of Appeals were focusing upon
the other. For all practical purposes, changes that would have
proved sufficient to show the statutory violation cured would have
proved sufficient to warrant setting aside the original judgment
and decrees, and vice versa. And in context, judges and parties
alike were fully aware of the modification/violation relationship.
See,
e.g., Intervenor-Defendants’ Closing Argument
Memorandum, No. CV–92–596–TUC–RCC (D. Ariz.), Dkt. No. 631, p. 1
(arguing that factual changes had led to “satisf[action]” of the
judgment).
To say, as the Court does, that “[f]unding is
merely one tool that may be employed to achieve the statutory
objective,”
ante, at 22, while true, is beside the point.
Of course, a State might violate the Act in other ways. But one way
in which a State can violate the Act is to fail to provide
necessary “practices, resources, and personnel.” And that is the
way the District Court found that the State had violated the Act
here. Thus, whatever might be true of some other case, in this case
the failure to provide adequate resources and the underlying
subsection (f) violation were one and the same thing.
Fifth, the Court is wrong when it suggests
that the District Court ordered “increased incremental funding,”
ante, at 19; when it faults the District Court for
effectively “dictating state or local budget priorities,”
ante, at 11; when it claims that state officials welcomed
the result “as a means of achieving appropriations objectives,”
ante, at 10, n. 3; and when it implies that the
District Court’s orders required the State to provide a “particular
level of funding,”
ante, at 33. The District Court ordered
the State to produce a plan that set forth a “reasonable” or
“rational” relationship between the needs of English-learning
students and the resources provided to them. The orders expressed
no view about what
kind of English-learning program the
State should use. Nor did the orders say anything about the
amount of “appropriations” that the State must provide,
ante, at 10, n. 3, or about any “particular funding
mechanism,”
ante, at 18, that the State was obligated to
create. Rather, the District Court left it up to the State “to
recommend [to the legislature] the level of funding necessary to
support the programs that it determined to be the most effective.”
160 F. Supp. 2d, at 1044. It ordered no more than that the
State (
whatever kind of program it decided to use) must
see that the chosen program benefits from a funding system that is
not “arbitrary and capricious,” but instead “bear[s] a rational
relationship” to the resources needed to implement the State’s
method. No. CV–92–596–TUCACM, 2001 WL 1028369, *2.
II
Part I shows that there is
nothing suspicious or unusual or unlawful about the lower courts
having focused primarily upon changes related to the resources
Arizona would devote to English-learning education (while also
taking account of
all the changes the petitioners raised).
Thus the Court’s
basic criticism of the lower court
decisions is without foundation. I turn next to the Court’s
discussion of the standards of review the Court finds applicable to
“institutional reform” litigation.
To understand my concern about
the Court’s discussion of standards, it is important to keep in
mind the well-known standards that ordinarily govern the evaluation
of Rule 60(b)(5) motions. The Rule by its terms permits
modification of a judgment or order (1) when “the judgment has been
satisfied,” (2) “released,” or (3) “discharged;” when the judgment
or order (4) “is based on an earlier judgment that has been
reversed or vacated;” or (5) “applying [the judgment] prospectively
is no longer equitable.” No one can claim that the second, third,
or fourth grounds are applicable here. The relevant judgment and
orders have not been released or discharged; nor is there any
relevant earlier judgment that has been reversed or vacated. Thus
the only Rule 60(b)(5) questions are whether the judgment and
orders have been satisfied, or, if not, whether their continued
application is “equitable.” And, as I have explained, in context
these come down to the same question: Is continued enforcement
inequitable because the defendants have satisfied the 2000
declaratory judgment or at least have come close to doing so, and,
given that degree of satisfaction, would it work unnecessary harm
to continue the judgment in effect? See
supra, at 14.
To show sufficient inequity to warrant Rule
60(b)(5) relief, a party must show that “a significant change
either in factual conditions or in law” renders continued
enforcement of the judgment or order “detrimental to the public
interest.”
Rufo, 502 U. S., at 384. The party can claim
that “the statutory or decisional law has changed to make legal
what the decree was designed to prevent.”
Id., at 388; see
also
Railway Employees v.
Wright,
364 U. S. 642, 651
(1961). Or the party can claim that relevant facts have changed to
the point where continued enforcement of the judgment, order, or
decree as written would work, say, disproportionately serious harm.
See
Rufo,
supra, at 384 (modification may be
appropriate when changed circumstances make enforcement
“substantially more onerous” or “unworkable because of unforeseen
obstacles”).
The Court acknowledges, as do I, as did the
lower courts, that
Rufo’s “flexible standard” for relief
applies. The Court also acknowledges, as do I, as did the lower
courts, that this “flexible standard” does not itself define the
inquiry a court passing on a Rule 60(b)(5) motion must make. To
give content to this standard, the Court refers to
Milliken v.
Bradley,
433 U. S. 267, 282
(1977), in which this Court said that a decree cannot seek to
“eliminat[e] a condition that does not violate” federal law or
“flow from such a violation,”
ante, at 13, and to
Frew v.
Hawkins,
540 U. S. 431, 441
(2004), in which this Court said that a “
consent decree”
must be “limited to reasonable and necessary implementations of
federal law” (emphasis added; internal quotation marks omitted).
Ante, at 13. The Court adds that in an “institutional
reform litigation” case, a court must also take account of the need
not to maintain decrees in effect for too long a time,
ante, at 12–13, the need to take account of “sensitive
federalism concerns,”
ante, at 11, and the need to take
care lest “consent decrees” reflect collusion between private
plaintiffs and state defendants at the expense of the legislative
process,
ante, at 12.
Taking these cases and considerations
together, the majority says the critical question for the lower
courts is “whether ongoing enforcement of the original order was
supported by an ongoing violation of federal law (here [subsection
(f)]).”
Ante, at 18. If not—
i.e., if a current
violation of federal law cannot be detected—then
“ ‘responsibility for discharging the State’s obligations
[must be] returned promptly to the State.’ ”
Ante, at
15.
One problem with the Court’s discussion of its
standards is that insofar as the considerations it mentions are
widely accepted, the lower courts fully acknowledged and followed
them. The decisions below, like most Rule 60(b)(5) decisions,
reflect the basic factors the Court mentions. The lower court
opinions indicate an awareness of the fact that equitable decrees
are subject to a “flexible standard” permitting modification when
circumstances, factual or legal, change significantly. 516
F. 3d, at 1163; 480 F. Supp. 2d, at 1165 (citing
Rufo,
supra, at 383). The District Court’s
application of
Castaneda’s interpretation of subsection
(f), 648 F. 2d, at 1009, along with its efforts to provide
state officials wide discretionary authority (about the level of
funding and the kind of funding plan), show considerable
sensitivity to “federalism concerns.” And given the many years (at
least seven) of state non-compliance, it is difficult to see how
the decree can have remained in place too long.
Nor is the decree at issue here a “consent
decree” as that term is normally understood in the institutional
litigation context. See
ante, at 10–13. The State did
consent to a few peripheral matters that have nothing to do with
the present appeal. App. 19–30. But the State vigorously contested
the plaintiffs’ basic original claim, namely, that the State failed
to take resource-related “appropriate action” within the terms of
subsection (f). The State presented proofs and evidence to the
District Court designed to show that no violation of federal law
had occurred, and it opposed entry of the original judgment and
every subsequent injunctive order, save the relief sought by
petitioners here. I can find no evidence, beyond the Court’s
speculation, showing that some state officials have “welcomed” the
District Court’s decision “as a means of achieving appropriations
objectives that could not [otherwise] be achieved.”
Ante,
at 10, n. 3. But even were that so, why would such a fact
matter here more than in any other case in which some state
employees believe a litigant who sues the State is right? I concede
that the State did not appeal the District Court’s original order
or the ensuing injunctions. But the fact that litigants refrain
from appealing does not turn a litigated judgment into a “consent
decree.” At least, I have never before heard that term so used.
Regardless, the Court’s discussion of
standards raises a far more serious problem. In addition to the
standards I have discussed,
supra, at 16–17, our
precedents recognize
other, here outcome-determinative,
hornbook principles that apply when a court evaluates a Rule
60(b)(5) motion. The Court omits some of them. It mentions but
fails to apply others. As a result, I am uncertain, and perhaps
others will be uncertain, whether the Court has set forth a correct
and workable method for analyzing a Rule 60(b)(5) motion.
First, a basic principle of law that the Court
does not mention—a principle applicable in this case as in
others—is that, in the absence of special circumstances
(
e.g., plain error), a judge need not consider issues or
factors that the parties themselves do not raise. That principle of
law is longstanding, it is reflected in Blackstone, and it perhaps
comes from yet an earlier age. 3 Commentaries on the Laws of
England 455 (1768) (“[I]t is a practice unknown to our law” when
examining the decree of an inferior court, “to examine the justice
of the … decree by evidence that was never produced below”);
Clements v.
Macheboeuf,
92 U. S. 418, 425 (1876)
(“Matters not assigned for error will not be examined”); see also
Savage v.
United States,
92 U. S. 382, 388 (1876)
(where a party with the “burden … to establish” a “charge … fails
to introduce any … evidence to support it, the presumption is that
the charge is without any foundation”);
McCoy v.
Massachusetts Inst. of Technology, 950 F. 2d 13, 22
(CA1 1991) (“It is hornbook law that theories not raised squarely
in the district court cannot be surfaced for the first time on
appeal” for “[o]verburdened trial judges cannot be expected to be
mind readers”). As we have recognized, it would be difficult to
operate an adversary system of justice without applying such a
principle. See
Duignan v.
United States,
274 U. S. 195, 200
(1927). But the majority repeatedly considers precisely such
claims. See,
e.g.,
ante, at 26–29 (considering
significant matters not raised below);
ante, at 34–36
(same).
Second, a hornbook Rule 60(b)(5) principle,
which the Court mentions,
ante, at 10, is that the party
seeking relief from a judgment or order “
bears the burden
of establishing that a significant change in circumstances
warrants” that relief.
Rufo, 502 U. S., at 383 (emphasis
added); cf.
Board of Ed. of Oklahoma City Public Schools
v.
Dowell,
498 U. S. 237, 249
(1991) (party moving for relief from judgment must make a
“sufficient showing” of change in circumstances). But the Court
does not apply that principle. See,
e.g.,
ante,
at 30–31, and n. 22 (holding that movants potentially
win
because of
failure of record to show that English-learning
problems do
not stem from causes other than funding); see
also
ante, at 26–27 (criticizing lower courts for failing
to consider argument not made).
Third, the Court ignores the well-established
distinction between a Rule 60(b)(5) request to
modify an
order and a request to set an unsatisfied judgment entirely aside—a
distinction that this Court has previously emphasized. Cf.
Rufo,
supra, at 389, n. 12 (emphasizing that
“we do not have before us the question whether the entire decree
should be vacated”). Courts normally do the latter only if the
“party” seeking “to have” the “decree set aside entirely” shows
“that the decree has served its purpose, and there is no longer any
need for the injunction.” 12 J. Moore et al., Moore’s Federal
Practice §60.47 [2][c] (3d ed. 2009) (hereinafter Moore). Instead
of applying the distinction, the majority says that the Court of
Appeals “strayed” when it referred to situations in which changes
justified setting an unsatisfied judgment entirely aside as
“ ‘likely rare.’ ”
Ante, at 14.
Fourth, the Court says nothing about the
well-established principle that a party moving under Rule 60(b)(5)
for relief that amounts to having a “decree set aside entirely”
must show
both (1) that the decree’s objects have been
“attained,”
Frew, 540 U. S., at 442,
and (2) that
it is unlikely, in the absence of the decree, that the unlawful
acts it prohibited will again occur. This Court so held in
Dowell, a case in which state defendants sought relief
from a school desegregation decree on the ground that the district
was presently operating in compliance with the Equal Protection
Clause. The Court agreed with the defendants that “a finding by the
District Court that the Oklahoma City School District was being
operated in compliance with … the Equal Protection Clause” was
indeed relevant to the question whether relief was appropriate. 498
U. S., at 247. But the Court added that, to show entitlement to
relief, the defendants must
also show that “it was
unlikely that the [school board] would return to its former ways.”
Ibid. Only then would the “purposes of the desegregation
litigation ha[ve] been fully achieved.”
Ibid. The
principle, as applicable here, simply underscores petitioners’
failure to show that the “changes” to which they pointed were
sufficient to warrant entirely setting aside the original court
judgment.
Fifth, the majority mentions, but fails to
apply, the basic Rule 60(b)(5) principle that a party cannot
dispute the legal conclusions of the judgment from which relief is
sought. A party cannot use a Rule 60(b)(5) motion as a substitute
for an appeal, say, by attacking the legal reasoning underlying the
original judgment or by trying to show that the facts, as they were
originally, did not then justify the order’s issuance.
Browder v.
Director, Dept. of Corrections of
Ill.,
434 U. S.
257, 263, n. 7 (1978);
United States v.
Swift
& Co.,
286
U. S. 106, 119 (1932) (party cannot claim that injunction could
not lawfully have been applied “to the conditions that existed at
its making”). Nor can a party require a court to retrace old legal
ground, say, by re-making or rejustifying its original
“constitutional decision every time an effort [is] made to enforce
or modify” an order.
Rufo,
supra, at 389–390
(internal quotation marks omitted); see also
Frew,
supra, at 438 (rejecting argument that federal court lacks
power to enforce an order “unless the court first identifies, at
the enforcement stage, a violation of federal law”).
Here, the original judgment rested upon a
finding that the State had failed to provide Nogales with adequate
funding “resources,”
Castaneda, 648 F. 2d,
at 1010, in violation of subsection (f)’s “appropriate action”
requirement. How then can the Court fault the lower courts for
first and foremost seeking to determine whether Arizona had
developed a plan that would provide Nogales with adequate
funding resources? How can it criticize the lower courts
for having “insulated the policies embedded in the order … from
challenge and amendment,”
ante, at 16, for having failed
to appreciate that “funding is simply a means, not the end” of the
statutory requirement,
ante, at 18, and for having
misperceived “the nature of the obligation imposed by the” Act,
ante, at 23? When the Court criticizes the Court of
Appeals for “misperceiving … the nature of the obligation imposed”
by the Act,
ibid., when it second-guesses finding after
finding of the District Court, see Part III,
infra, when
it early and often suggests that Arizona may well comply despite
lack of a rational funding plan (and without discussing how the
changes it mentions could show compliance), see
ante, at
15, 18, what else is it doing but putting “the plaintiff [or] the
court … to the unnecessary burden of re-establishing what has once
been decided”?
Railway Employees, 364 U. S., at 647.
Sixth, the Court mentions, but fails to apply,
the well-settled legal principle that appellate courts, including
this Court, review district court denials of Rule 60(b) motions (of
the kind before us) for abuse of discretion. See
Browder,
supra, at 263, n. 7;
Railway Employees,
supra, at 648–650. A reviewing court must not substitute
its judgment for that of the district court. See
National
Hockey League v.
Metropolitan Hockey Club, Inc.,
427 U. S. 639,
642 (1976)
(per curiam); see also
Calderon v.
Thompson,
523 U. S. 538, 567–568
(1998) (Souter, J., dissenting) (“[A] high degree of deference to
the court exercising discretionary authority is the hallmark of
[abuse of discretion] review”). Particularly where, as here,
entitlement to relief depends heavily upon fact-related
determinations, the power to review the district court’s decision
“ought seldom to be called into action,” namely only in the rare
instance where the Rule 60(b) standard “appears to have been
misapprehended or grossly misapplied.” Cf.
Universal Camera
Corp. v.
NLRB,
340 U. S. 474, 490–491
(1951). The Court’s bare assertion that a court abuses its
discretion when it fails to order warranted relief,
ante,
at 10, fails to account for the deference due to the District
Court’s decision.
I have just described Rule 60(b)(5) standards
that concern (1) the obligation (or lack of obligation) upon a
court to take account of considerations the parties do not raise;
(2) burdens of proof; (3) the distinction between setting aside and
modifying a judgment; (4) the need to show that a decree’s basic
objectives have been attained; (5) the importance of not requiring
relitigation of previously litigated matters; and (6) abuse of
discretion review. Does the Court intend to ignore one or more of
these standards or to apply them differently in cases involving
what it calls “institutional reform litigation”?
If so, the Court will find no support for its
approach in the cases to which it refers, namely
Rufo,
Milliken, and
Frew.
Rufo involved a
motion to modify a complex court-monitor-supervised decree designed
to prevent overcrowding in a local jail. The Court stressed the
fact that the modification did not involve setting aside the entire
decree. 502 U. S., at 389, n. 12. It made clear that the party
seeking relief from an institutional injunction “bears the burden
of establishing that a significant change in circumstances
warrants” that relief.
Id., at 383. And it rejected the
argument that a reviewing court must determine, in every case,
whether an ongoing violation of federal law exists.
Id.,
at 389, 390, and n. 12 (
refusing to require a new
“ ‘
constitutional decision every time an effort [is] made
to enforce or modify’ ”
a judgment or decree
(emphasis added)).
Frew addressed the question whether
the Eleventh Amendment permits a federal district court to enforce
a
consent decree against state officials seeking to bring
the State into compliance with federal law. 540 U. S., at 434–435.
The Court unanimously held that it does; and in doing so, the Court
rejected the State’s alternative argument that a federal court may
only enforce such an order if it “first identifies … a violation of
federal law” existing at the time that enforcement is sought.
Id., at 438. Rather, the Court explained that
“ ‘federal courts are not reduced to’ ” entering
judgments or orders “ ‘and hoping for compliance,’ ”
id., at 440, but rather retain the power to enforce
judgments in order “to ensure that … the objects” of the court
order are met,
id., at 442. It also emphasized, like
Dowell, that relief is warranted only when “the objects of
the decree have been attained.” 540 U. S., at 442.
What of
Milliken? Milliken
involved direct review (rather than a motion for relief) of a
district court’s order requiring the Detroit school system to
implement a host of remedial programs, including counseling and
special reading instruction, aimed at schoolchildren previously
required to attend segregated schools. 433 U. S., at 269, 272. The
Court said that a court decree must aim at “eliminating a
condition” that violates federal law or which “flow[s] from” such a
“violation.”
Id., at 282. And it unanimously found that
the remedy at issue
was lawful.
These cases confirm the unfortunate fact that
the Court has failed fully to apply the six essential principles
that I have mentioned. If the Court does not intend any such
modifications of these traditional standards, then, as I shall
show, it must affirm the Court of Appeals’ decision. But if it does
intend to modify them, as stated or in application, it now applies
a new set of new rules that are
not faithful to our cases
and which will create the dangerous possibility that orders,
judgments, and decrees long final or acquiesced in, will be
unwarrantedly subject to perpetual challenge, offering defendants
unjustifiable opportunities endlessly to relitigate underlying
violations with the burden of proof imposed once again upon the
plaintiffs.
I recognize that the Court’s decision, to a
degree, reflects one side of a scholarly debate about how courts
should properly handle decrees in “institutional reform
litigation.” Compare, in general, R. Sandler & D. Schoenbrod,
Democracy by Decree: What Happens When Courts Run Government
(2003), with,
e.g., Chayes, The Role of the Judge in
Public Law Litigation, 89 Harv. L. Rev. 1281, 1307–1309
(1976). But whatever the merits of that debate, this case does not
involve the kind of “institutional litigation” that most commonly
lies at its heart. See,
e.g., M. Feeley & E. Rubin,
Judicial Policy Making and the Modern State: How the Courts
Reformed America’s Prisons (1998); but see
ante, at 10,
n. 3.
The case does not involve schools, prisons, or
mental hospitals that have failed to meet basic constitutional
standards. See,
e.g.,
Dowell, 498 U. S., at
240–241. It does not involve a comprehensive judicial decree that
governs the running of a major institution. See,
e.g.,
Hutto v.
Finney,
437 U. S. 678, 683–684
(1978). It does not involve a highly detailed set of orders. See,
e.g.,
Ramos v.
Lamm, 639 F. 2d 559,
585–586 (CA10 1980). It does not involve a special master charged
with the task of supervising a complex decree that will gradually
bring a large institution into compliance with the law. See,
e.g.,
Ruiz v.
Estelle, 679 F. 2d
1115, 1160–1161 (CA5 1982). Rather, it involves the more common
complaint that a state or local government has failed to meet a
federal statutory requirement. See,
e.g.,
Concilio de
Salud Integral de Loiza, Inc. v.
Pérez-Perdomo, 551
F. 3d 10, 16 (CA1 2008);
Association of Community Orgs.
for Reform Now v.
Edgar, 56 F. 3d 791, 797–798
(CA7 1995);
John B. v.
Menke, 176 F. Supp.
2d 786, 813–814 (MD Tenn. 2001). It involves a court imposition of
a fine upon the State due to its lengthy failure to take steps to
comply. See,
e.g.,
Hook v.
Arizona Dept. of
Corrections, 107 F. 3d 1397, 1404 (CA9 1997);
Alberti v.
Klevenhagen, 46 F. 3d 1347, 1360
(CA5 1995). And it involves court orders that leave the State free
to pursue the English-learning program of its choice while
insisting only that the State come up with a funding plan that is
rationally related to the program it chooses. This case is more
closely akin to
Goldberg v.
Kelly,
397 U. S. 254 (1970) (in
effect requiring legislation to fund welfare-related “due process”
hearings); cf.
id., at 277–279 (Black, J., dissenting),
than it is to the school busing cases that followed
Brown
v.
Board of Education,
347 U. S. 483
(1954).
As I have said,
supra, at 16–18, the
framework that I have just described, filling in those principles
the Court neglects, is precisely the framework that the lower
courts applied. 516 F. 3d, at 1163; 480 F. Supp. 2d, at
1165. In the opinions below, I can find no misapplication of the
legal standards relevant to this case. To the contrary, the Court
of Appeals’ opinion is true to the record and fair to the decision
of the District Court. And the majority is wrong to conclude
otherwise.
III
If the Court’s criticism of the
lower courts cannot rest upon what they did do, namely examine
directly whether Arizona had produced a rational funding program,
it must rest upon what it believes they did not do, namely
adequately consider the other changes in English-learning
instruction, administration, and the like to which petitioners
referred. Indeed, the Court must believe this, for it orders the
lower courts, on remand, to conduct a “proper examination” of “four
important factual and legal changes that may warrant the granting
of relief from the judgment:” (1) the “adoption of a new …
instructional methodology” for teaching English; (2) “Congress’
enactment” of the No Child Left Behind Act of 2001, 20 U.
S. C. §6842
et seq.; (3) “structural and management
reforms in Nogales,” and (4) “increased overall education funding.”
Ante, at 23.
The Court cannot accurately hold,
however, that the lower courts failed to conduct a “proper
examination” of these claims,
ibid., for the District
Court considered three of them, in detail and at length, while
petitioners
no where raised the remaining argument, which
has sprung full-grown from the Court’s own brow, like Athena from
the brow of Zeus.
A
The first “change” that the Court
says the lower courts must properly “examin[e]” consists of the
“change” of instructional methodology, from a method of “bilingual
education” (teaching at least some classes in Spanish, while
providing separate instruction in English) to a method of
“ ‘structured English immersion’ ” (teaching all or
nearly all classes in English but with a specially designed
curriculum and materials).
Ante, at 23. How can the
majority suggest that the lower courts failed properly to “examine”
this matter?
First, more than two days of the
District Court’s eight-day evidentiary hearing were devoted to
precisely this matter, namely the claim pressed below by
petitioners that “[t]he adoption of English immersion” constitutes
a “substantial advancemen[t] in assisting” English learners “to
become English proficient.” Hearing Memorandum, No.
CV–92–596–TUC–RCC (D. Ariz.), Dkt. No. 588, pp. 4–5. The
State’s Director of English Acquisition, Irene Moreno, described
the new method as “the most effective” way to teach English. Tr. 19
(Jan. 9, 2007). An educational consultant, Rosalie Porter, agreed.
Id., at 95–96. Petitioners’ witnesses also described a new
assessment test, the Arizona English Language Learner Assessment,
id., at 50–51; they described new curricular models that
would systematize instructional methods,
id., at 78; they
explained that all teachers would eventually be required to obtain
an “endorsement” demonstrating their expertise in the chosen
instructional method, see Proposed Findings of Fact and Conclusions
of Law, No. CV–92–596–TUC–RCC (D. Ariz.), Dkt. No. 593, p. 7; and
they pointed to data showing that the percentage of Nogales’
English learners successfully completing the program had recently
jumped from 1% of such students in 2004 to 35% in 2006. App. to
Pet. for Cert. in No. 08–289, p. 309.
The District Court in its opinion, referring
to the several days of hearings, recognized the advances and
acknowledged that the State had formulated new systems with new
“standards, norms and oversight for Arizona’s public schools and
students with regard to” English-learning programs. 480
F. Supp. 2d, at 1160. It also indicated that it expected the
orders would soon prove unnecessary as the State had taken “step[s]
towards” developing an “appropriate” funding mechanism, App. to
Pet. for Cert. in No. 08–289, p. 125—a view it later reaffirmed,
Order, No. CV–92–596–TUC–RCC (D. Ariz.), Dkt. No. 703, p. 4.
The Court of Appeals, too, in its opinion acknowledged that the
dispute “may finally be nearing resolution.” 516 F. 3d, at
1180.
But, at the same time, the District Court
noted that “many of the new standards are still evolving.” 480
F. Supp. 2d, at 1160. It found that “it would be premature to
make an assessment of some of these changes.”
Ibid. And it
held that, all in all, the changes were not yet sufficient to
warrant relief.
Id., at 1167. The Court of Appeals upheld
the findings and conclusions as within the discretionary powers of
the District Court, adding that the evidence showing that
significantly more students were completing the program was “not
reliable.” 516 F. 3d, at 1157. What “further factual
findings,”
ante, at 25, are needed? As I have explained,
the District Court was not obligated to relitigate the case. See
supra, at 21–22. And it
did find that “the State
has changed its primary model” of English-learning instruction “to
structured English immersion.” 480 F. Supp. 2d, at 1161. How
can the majority conclude that “further factual findings” are
necessary?
Perhaps the majority does not mean to suggest
that the lower courts failed properly to examine these changes in
teaching methods. Perhaps it means to express its belief that the
lower courts reached the wrong conclusion. After all, the Court
refers to a “documented, academic support for the view that”
structured English immersion “is significantly more effective than
bilingual education.”
Ante, at 24.
It is difficult to see how the majority can
substitute its judgment for the District Court’s judgment on this
question, however, for that judgment includes a host of subsidiary
fact-related determinations that warrant deference.
Railway
Employees, 364 U. S., at 647–648 (“Where there is . . . a
balance of imponderables there must be wide discretion in the
District Court”). And, despite considerable evidence showing
improvement, there was also considerable evidence the other way,
evidence that supported the District Court’s view that it would be
“premature” to set aside the judgment of violation.
The methodological change was introduced in
Arizona in late 2000, and in Nogales it was a work in progress,
“[t]o one degree or another,” as of June 2005. Tr. 10 (Jan. 12,
2007);
ante, at 25. As of 2006, the State’s newest
structured English immersion models had not yet taken effect. Tr.
138 (Jan. 17, 2007) (“We’re getting ready to hopefully put down
some models for districts to choose from”). The State had adopted
its new assessment test only the previous year. App. 164–165. The
testimony about the extent to which Nogales had adopted the new
teaching system was unclear and conflicting. Compare Tr. 96 (Jan.
9, 2007) with Tr. 10 (Jan. 12, 2007). And, most importantly, there
was evidence that the optimistic improvement in the number of
students completing the English-learning program was considerably
overstated. See Tr. 37 (Jan. 18, 2007) (stating that the
assessment test used in 2005 and 2006, when dramatic
improvements had been reported,
was significantly less
“rigorous” and consequently had been replaced). The State’s
own witnesses were unable firmly to conclude that the new system
had so far produced significantly improved results. Tr. 112–113
(Jan. 11, 2007) (stating that “
at some point” it would be
possible to tell how quickly the new system leads to English
proficiency (emphasis added)).
Faced with this conflicting evidence, the
District Court concluded that it was “premature” to dissolve the
decree on the basis of changes in teaching (and related standards
and assessment) methodology. Given the underlying factual disputes
(about,
e.g., the reliability of the testing method), how
can this Court now hold that the District Court, and the appellate
court that affirmed its conclusions, were legally wrong?
B
The second change that the Court
says the lower courts should properly “examine” is the “enactment”
of the No Child Left Behind Act.
Ante, at 25. The Court
concedes, however, that both courts did address the only argument
about that “enactment” that the petitioners made, namely, that
“compliance” with that new law automatically constitutes compliance
with subsection (f)’s “ ‘appropriate action’ ”
requirement.
Ante, at 26; see also,
e.g., App. 73
(arguing that the new law “preempts” subsection (f)). And the Court
today agrees (as do I) that the lower courts properly rejected that
argument.
Ante, at 26.
Instead, the Court suggests that
the lower courts wrongly failed to take account of four other ways
in which the new Act is “probative,” namely (1) its prompting
“significant structural and programming” changes, (2) its increases
in “federal funding,” (3) “its assessment and reporting
requirements,” and (4) its “shift in federal education policy.”
Ante, at 26–28. In fact, the lower courts did take account
of the changes in structure, programming, and funding (including
federal funding) relevant to the English-learning program in
Nogales and elsewhere in the State. See Part III–A,
supra;
Parts III–C and III–D,
infra. But, I agree with the Court
that the District Court did not explicitly relate its discussion to
the new Act nor did it take account of what the majority calls a
“shift in federal education policy.”
Ante, at 28.
The District Court failed to do what the Court
now demands for one simple reason. No one (with the possible
exception of the legislators, who hint at the matter in their reply
brief filed in this Court) has ever argued that the District Court
should take account of any such “change.” But see
ante, at
26, and n. 12.
As I have explained, see
supra, at
19–20, it is well-established that a district court rarely commits
legal error when it fails to take account of a “change” that no one
called to its attention or fails to reply to an argument that no
one made. See,
e.g.,
Dowell, 498 U. S., at 249
(party seeking relief from judgment must make a “sufficient
showing”). A district court must construe fairly the arguments made
to it; but it is not required to conjure up questions never
squarely presented. That the
Court of Appeals referred to
an argument resembling the Court’s new assertion does not change
the underlying legal fact. The District Court committed no legal
error in failing to consider it. The Court of Appeals could
properly reach the same conclusion. And the Government, referring
to the argument here, does not ask for reversal or remand on that,
or on any other, basis.
That is not surprising, since the lower courts
have consistently and explicitly held that “flexibility cannot be
used to relieve the moving party of its burden to establish that”
dissolution is warranted.
Thompson v.
United States
Dept. of Housing and Urban Development, 220 F. 3d 241,
248 (CA4 2000);
Marshall v.
Board of Ed., Bergenfield,
N. J., 575 F. 2d 417, 423–424 (CA3 1978). There is
no basis for treating this case in this respect as somehow
exceptional, particularly since publicly available documents
indicate that, in any event, Nogales is not “ ‘reaching its
own goals under Title III’ ” of the Act.
Ante, at 26,
n. 12; FY 2008 Statewide District/Charter Determinations for
the Title III AMAOs (rev. Oct. 2008), http://
www.azed.gov/oelas/downloads/T3Determinations2008.pdf (showing that
Nogales failed to meet the Act’s “Annual Measurable Achievement
Objectives,” which track the progress of ELL students).
C
The third “change” that the Court
suggests the lower courts failed properly to “examine” consists of
“[s]tructural and management reforms in Nogales.”
Ante, at
29. Again, the Court cannot mean that the lower courts failed to
“examine” these arguments, for the District Court heard extensive
evidence on the matter. The Court itself refers to some (but only
some) of the evidence introduced on this point, namely the
testimony of Kelt Cooper, the former Nogales district
superintendent, who said that his administrative policies had
“ ‘ameliorated or eliminated many of the most glaring
inadequacies’ ” in Nogales’ program.
Ibid. The Court
also refers to the District Court’s and Court of Appeals’
conclusions about the matter. 480 F. Supp. 2d, at 1160 (“The
success or failure of the children of” Nogales “should not depend
on” “one person”); 516 F. 3d, at 1156–1157 (recognizing that
Nogales had achieved “reforms with limited resources” but also
pointing to evidence showing that “there are still significant
resource constraints,” and affirming the District Court’s similar
conclusion).
Rather the Court claims that the
lower courts improperly “discounted” this evidence.
Ante,
at 30. But what does the Court mean by “discount”? It cannot mean
that the lower courts failed to take account of the possibility
that these changes “might have brought Nogales[’]” program into
“compliance” with subsection (f). After all, that is precisely what
the petitioners below argued. Intervenor-Defendants’ Closing
Argument Memorandum, No. CV–92–596–TUC–RCC (D. Ariz.), Dkt. No.
631, pp. 7–18. Instead the Court must mean that the lower
courts should have given significantly more weight to the changes,
i.e., the Court disagrees with the lower courts’
conclusion about the likely effect these changes will have on the
success of Nogales’ English-learning programs (hence, on the need
for the judgment and orders to remain in effect).
It is difficult to understand the legal basis
for the Court’s disagreement about this fact-related matter. The
evidence before the District Court was mixed. It consisted of some
evidence showing administrative reform and managerial improvement
in Nogales.
Ante, at 29–30. At the same time other
evidence, to which the Court does not refer, shows that these
reforms did not come close to curing the problem. The record shows,
for example, that the graduation rate in 2005 for English-learning
students (59%) was significantly below the average for all students
(75%). App. 195. It shows poor performance by English-learning
students, compared with English-speaking students, on Arizona’s
content-based standardized tests. See Appendix A,
infra.
This was particularly true at Nogales’ sole high school—which
Arizona ranked 575th out of its 629 schools on an educational
department survey, 516 F. 3d, at 1159—where only 28% of ELL
students passed those standardized tests.
Ibid.
The record also contains testimony from
Guillermo Zamudio, who in 2005 succeeded Cooper as Nogales’
superintendent, and who described numerous relevant
“resource-related” deficiencies: Lack of funding meant that Nogales
had to rely upon long-term substitute and “emergency certified”
teachers without necessary training and experience. Tr. 45 (Jan.
18, 2007). Nogales needed additional funding to hire trained
teachers’ aides—a “strong component” of its English-learning
program,
id., at 47. And Nogales’ funding needs forced it
to pay a starting base salary to its teachers about 14% below the
state average, making it difficult to recruit qualified teachers.
Id., at 48
. Finally, Zamudio said that Nogales’
lack of resources would likely lead in the near future to the
cancellation of certain programs, including a remedial reading
program,
id., at 56, and would prevent the school district
from providing appropriate class sizes and tutoring, which he
characterized as “essential and necessary for us to be able to have
our students learn English,”
id., at 75–78.
The District Court, faced with all this
evidence, found the management and structural “change” insufficient
to warrant dissolution of its decree. How can the Court say that
this conclusion is unreasonable? What is the legal basis for
concluding that the District Court acted beyond the scope of its
lawful authority?
In fact, the Court does not even try to claim
that the District Court’s conclusion is unreasonable. Rather it
enigmatically says that the District Court made “insufficient
factual findings” to support the conclusion that an ongoing
violation of law exists.
Ante, at 31–32. By
“insufficient,” the Court does not mean nonexistent. See 480
F. Supp. 2d, at 1163–1164. Nor can it mean that the District
Court’s findings were skimpy or unreasonable. That court simply
drew conclusions on the basis of evidence it acknowledged was
mixed.
Id., at 1160–1161. What is wrong with those
findings, particularly if viewed with appropriate deference?
At one point the Court says that there “are
many possible causes” of Nogales’ difficulties and that the lower
courts failed to “take into account other variables that may
explain” the ongoing deficiencies.
Ante, at 32 and
n. 20. But to find a flaw here is to claim that the plaintiffs
have failed to negate the possibility that these other causes, not
the State’s resource failures, explain Nogales’ poor performance.
To say this is to ignore well-established law that accords
deference to the District Court’s fact-related judgments. See
supra, at 22–23. The Court’s statements reflect the
acknowledgment that the evidence below was mixed. Given that
acknowledgment, it is clear that the District Court did not abuse
its discretion in finding that petitioners had not shown sufficient
“changed circumstances.” And it was petitioners’ job, as the moving
party, to show that compliance with federal law has been achieved.
Where “other variables” make it difficult to conclude that a
present violation does or does not exist, what error does the
District Court commit if it concludes that the moving party has
failed to satisfy that burden?
D
The fourth “change” that the
Court suggests the lower courts did not properly “examine” consists
of an “overall increase in the education funding available in
Nogales.”
Ante, at 32. Again, the Court is wrong to
suggest that the District Court failed fully to examine the matter,
for despite the Court’s assertions to the contrary, it made a
number of “up-to-date factual findings,”
ante, at 33, on
the matter, see 480 F. Supp. 2d, at 1161–1164. Those findings
reflect that the State had developed an educational plan that
raised the “base level amount” for the typical student from $3,139
per pupil in 2000 to $3,570 in 2006 (in constant 2006 dollars),
ante, at 32, n. 21; and that plan increased the additional
(
i.e., “weighted”) amount that would be available per
English-learning student from $182 to $349 (in 2006 dollars). The
State contended that this new plan, with its explanation of how the
money needed would be forthcoming from federal, as well as from
state, sources, met subsection (f)’s requirement for “appropriate
action” (as related to “resources”) and the District Court’s own
insistence upon a mechanism that rationally funded those resources.
See Appendix B,
infra.
Once again the Court’s
“factual-finding” criticism seems, in context, to indicate its
disagreement with the lower courts’ resolution of this argument.
That is to say, the Court seems to disagree with the District
Court’s conclusion that, even with the new funding, the State
failed to show that adequate resources for English-learning
programs would likely be forthcoming; hence the new plan was not
“rationally related” to the underlying resource problem.
The record, however, adequately supports the
District Court’s conclusion. For one thing, the funding plan
demonstrates that, in 2006, 69% of the available funding was
targeted at “base level” education, see Appendix B,
infra,
i.e., it was funding available to provide students with
basic educational services like instruction in mathematics,
science, and so forth. See Tr. 110 (Jan. 12, 2007). The District
Court found that this funding likely would not become available for
English-learning programs.
How is that conclusion unreasonable? If these
funds are provided for the provision of only basic services, how
can the majority now decide that a school district—particularly a
poor school district like Nogales—would be able to cover the
additional expenses associated with English-learning education
while simultaneously managing to provide for its students’ basic
educational needs? Indeed, the idea is particularly impractical
when applied to a district like Nogales, which has a high
percentage of students who need extra resources. See 516
F. 3d, at 1145 (approximately 90% of Nogales’ students were,
or had been, enrolled in the English-learning program in 2006).
Where the vast majority of students in a district are those who
“need extra help” which “costs extra money,” it is difficult to
imagine where one could find an untapped stream of funding that
could cover those additional costs.
For another thing, the petitioners’ witnesses
conceded that the State had not yet determined the likely costs to
school districts of teaching English learners using the structured
English immersion method. See,
e.g., Tr. 199–200 (Jan. 17,
2007). The legislators reported that the State had recently asked a
task force to “determine” the extra costs associated with
implementing the structured English immersion model. Speaker’s
Opening Appellate Brief in No. 07–15603 etc. (CA9), p. 31. But
that task force had not yet concluded its work.
Further, the District Court doubted that the
federal portion of the funding identified by the petitioners would
be available for English-learning programs. It characterized
certain federal grant money, included in the petitioners’ calculus
of available funds, as providing only “short-term” assistance, 480
F. Supp. 2d, at 1161. And testimony at the evidentiary hearing
indicated that some of the funds identified by petitioners might
not in fact be available to Nogales’ schools. See Tr. 59–61 (Jan.
10, 2007). It also noted that certain funds were restricted,
meaning that no particular English-learning child could benefit
from them for more than two years—despite the fact that
English-learning students in Nogales on average spend four to five
years in that program. 480 F. Supp. 2d, at 1163–1164 (Nogales
will have to “dilute” the funds provided to cover students who
remain English learners for more than two years).
Finally, the court pointed to federal law,
which imposes a restriction forbidding the State to use a large
portion of (what the State’s plan considered to be) available funds
in the manner the State proposed,
i.e., to “supplant,” or
substitute for, the funds the State would otherwise have spent on
the program.
Id., at 1162; see also 20 U. S. C.
§§6314(a)(2)(B), 6315(b)(3), 6613(f), 6825(g). The District Court
concluded that the State’s funding plan was in large part
unworkable in light of this restriction. In reaching this
conclusion, the District Court relied in part upon the testimony of
Thomas Fagan, a former United States Department of Education
employee and an “expert” on this type of federal funding. Fagan
testified that Arizona’s plan was a “ ‘blatant
violation’ ” of the relevant laws, which could result in a
loss to the State of over $600 million in federal funds—including
those federal funds the State’s plan would provide for English
learners. 480 F. Supp. 2d, at 1163.
The Court says that the analysis I have just
described, and in which the court engaged, amounts to “clear legal
error.”
Ante, at 33. What error? Where is the error? The
Court does say earlier in its opinion that the lower courts “should
not” have “disregarded” the relevant federal (
i.e., No
Child Left Behind Act) funds “just because they are not state
funds.”
Ante, at 27. But the District Court did
not disregard those funds “just because they are not state
funds.” Nor did it “foreclos[e] the possibility that petitioners
could” show entitlement to relief by pointing to “an overall
increase in education funding.”
Ante, at 33. Rather, the
District Court treated those increased funds as potentially
unavailable, primarily because their use as planned would violate
federal law and would thereby threaten the State with total loss of
the stream of federal funding it planned to use. It concluded that
the State’s plan amounted to “ ‘a blatant violation’ ” of
federal law, and remarked that “the potential loss of federal funds
is substantial.” 480 F. Supp. 2d, at 1163. Is there a better
reason for “disregard[ing]” those funds?
The Court may have other “errors” in mind as
well. It does say, earlier in its opinion, that some believe that
“increased funding
alone does not improve student
achievement,”
ante, at 28 (emphasis added), and it refers
to nine studies that suggest that increased funding does not always
help. See
ante, at 28–31, nn. 17–19; see also Brief for
Education-Policy Scholars as
Amici Curiae 7–11 (discussing
such scholarship). I do not know what this has to do with the
matter. But if it is relevant to today’s decision, the Court should
also refer to the many studies that cast doubt upon the results of
the studies it cites. See,
e.g., H. Ladd & J. Hansen,
Making Money Matter: Financing America’s Schools 140–147 (1999);
Hess, Understanding Achievement (and Other) Changes Under Chicago
School Reform, 21 Educ. Eval. & Pol’y Analysis 67, 78 (1999);
Card & Payne, School Finance Reform, The Distribution of School
Spending, and the Distribution of Student Test Scores, 83 J. Pub.
Econ. 49, 67 (2002); see also Rebell, Poverty, “Meaningful”
Educational Opportunity, and the Necessary Role of the Courts, 85
N. C. L. Rev. 1467, 1480 (2007); R. Greenwald, L.
Hedges & R. Laine, The Effect of School Resources on Student
Achievement, 66 Rev. Educ. Res. 361, 362 (1996).
Regardless, the relation of a funding plan to
improved performance is not an issue for this Court to decide
through footnote references to the writings of one side of a
complex expert debate. The question here is whether the State has
shown that its new funding program amounts to a “change” that
satisfies subsection (f)’s requirement. The District Court found it
did not. Nothing this Court says casts doubt on the legal validity
of that conclusion.
IV
The Court’s remaining criticisms
are not well founded. The Court, for example, criticizes the Court
of Appeals for having referred to the “circumstances” that “warrant
Rule 60(b)(5) relief as ‘
likely rare,’ ” for having
said the petitioners would have to “
sweep away” the
District Court’s “funding determination” in order to prevail, for
having spoken of the “landscape” as not being “so
radically
changed as to justify relief from judgment without
compliance,” and for having somewhat diminished the “close[ness]”
of its review for “federalism concerns” because the State and its
Board of Education “wish the injunction to remain in place.”
Ante, at 14–15 (first, second, and fourth emphases added;
internal quotation marks omitted).
The Court, however, does not
explain the context in which the Court of Appeals’ statements
appeared. That court used its first phrase (“likely rare”) to refer
to the
particular kind of modification that the State
sought, namely complete relief from the original judgment, even if
the judgment’s objective was not yet fully achieved. 516
F. 3d, at 1167; cf. Moore §60.47 [2][c]. As far as I know it
is indeed “rare” that “a prior judgment is so undermined by later
circumstances as to render its continued enforcement inequitable”
even though compliance with the judgment’s legal determination has
not occurred. 516 F. 3d, at 1167. At least, the Court does not
point to other instances that make it common. Uses of the word
“sweeping” and “radica[l] change” in context refer to the deference
owed to the District Court’s 2000 legal determination. See
id., at 1168 (describing the 2000 order’s “basic
determination” that English-learning “programs require substantial
state funding in addition to that spent on basic educational
programming”). If there is an error (which I doubt, see
supra, at 21–23) the error is one of tone, not of law.
Nor do I see any legal error that could have
made a difference when the Court of Appeals said it should downplay
the importance of federalism concerns because some elements of
Arizona’s state government support the judgment. I do not know the
legal basis for the majority’s reference to this recalibration of
judicial distance as “flatly incorrect,” but, if it is wrong, I
still do not see how recalibrating the recalibration could
matter.
In sum, the majority’s decision to set aside
the lower court decisions rests upon (1) a mistaken effort to drive
a wedge between (a) review of funding plan changes and (b) review
of changes that would bring the State into compliance with federal
law, Part I,
supra; (2) a misguided attempt to show that
the lower courts applied the wrong legal standards, Part II,
supra; (3) a mistaken belief that the lower courts made
four specific fact-based errors, Part III,
supra; and (4)
a handful of minor criticisms, Part IV,
supra and this
page. By tracing each of these criticisms to its source in the
record, I have tried to show that each is unjustified. Whether
taken separately or together, they cannot warrant setting aside the
Court of Appeals’ decision.
V
As a totally separate matter, the
Court says it is “unclear” whether the District Court improperly
ordered statewide injunctive relief instead of confining that
relief to Nogales. And it orders the District Court to vacate the
injunction “insofar as it extends beyond Nogales” unless the court
finds that “Arizona is violating” subsection (f) “on a statewide
basis.”
Ante, at 36.
What is the legal support for
this part of the majority’s opinion? Prior to the appearance of
this case in this Court, no one asked for that modification.
Nothing in the law, as far as I know, makes the relief somehow
clearly erroneous. Indeed, as the majority recognizes, the reason
that the injunction runs statewide is that the State of Arizona,
the defendant in the litigation,
asked the Court to enter that
relief. The State pointed in support to a state constitutional
provision requiring educational uniformity. See
ante, at
35. There is no indication that anyone disputed whether the
injunction should have statewide scope. A statewide program harmed
Nogales’ students, App. 13–14, ¶¶40, 42; and the State wanted
statewide relief. What in the law makes this relief erroneous?
The majority says that the District Court must
consider this matter because “[p]etitioners made it clear at oral
argument that they wish to argue that the extension of the remedy
to districts other than Nogales should be vacated.”
Ante,
at 34, n. 23. I find the matter less clear. I would direct the
reader to the oral argument transcript, which reads in part:
“Mr. Starr: What was entered here in this order,
which makes it so extraordinary, is that the entire State funding
mechanism has been interfered with by the order. This case started
out in Nogales.
. . . . .
“Justice Scalia: Well, I—I agree with that. I think
it was a vast mistake to extend a lawsuit that applied only to
Nogales to the whole State, but the State attorney general wanted
that done.
“Mr. Starr: But we should be able now to—
“Justice Scalia: But that’s—that’s water over the dam. That’s
not what this suit is about now.” Tr. of Oral Arg. 26.
Regardless, what is the legal basis for the Court’s
order telling the District Court it
must reconsider the
matter? There is no clear error. No one has asked the District
Court for modification. And the scope of relief is primarily a
question for the District Court.
Swann v.
Charlotte-Mecklenburg Bd. of Ed.,
402 U. S. 1, 15 (1971)
(“Once a right and a violation have been shown, the scope of a
district court’s equitable powers to remedy past wrongs is broad,
for breadth and flexibility are inherent in equitable
remedies”).
VI
As the length of the opinions
indicates, this case requires us to read a highly detailed record.
Members of this Court have reached different conclusions about what
that record says. But there is more to the case than that.
First, even if one sees this case
as simply a technical record-reading case, the disagreement among
us shows why this Court should ordinarily hesitate to hear cases
that require us to do no more than to review a lengthy record
simply to determine whether a lower court’s fact-based
determinations are correct. Cf.
Universal Camera, 340 U.
S., at 488 (“[A] court may [not] displace” a “choice between two
fairly conflicting views, even though the court would justifiably
have made a different choice had the matter been before it
de
novo”);
Graver Tank & Mfg. Co. v.
Linde Air
Products Co.,
336 U. S. 271, 275
(1949) (noting the well-settled rule that this court will not
“undertake to review concurrent findings of fact by two courts
below in the absence of a very obvious and exceptional showing of
error”). In such cases, appellate courts are closer to the fray,
better able to reach conclusions that are true to the record, and
are more likely to treat trial court determinations fairly and with
respect—as is clearly so here.
Second, insofar as the Court goes beyond the
technical record-based aspects of this case and applies a new
review framework, it risks problems in future cases. The framework
it applies is incomplete and lacks clear legal support or
explanation. And it will be difficult for lower courts to
understand and to apply that framework, particularly if it rests on
a distinction between “institutional reform litigation” and other
forms of litigation. Does the Court mean to say, for example, that
courts must, on their own, go beyond a party’s own demands and
relitigate an underlying legal violation whenever that party asks
for modification of an injunction? How could such a rule work in
practice? See
supra, at 21–23. Does the Court mean to
suggest that there are other special, strict pro-defendant rules
that govern review of district court decisions in “institutional
reform cases”? What precisely are those rules? And when is a case
an “institutional reform” case? After all, as I have tried to show,
see
supra, at 18–19, the case before us cannot easily be
fitted onto the Court’s Procrustean “institutional reform” bed.
Third, the Court may mean its opinion to
express an attitude, cautioning judges to take care when the
enforcement of federal statutes will impose significant financial
burdens upon States. An attitude, however, is not a rule of law.
Nor does any such attitude point towards vacating the Court of
Appeals’ opinion here. The record makes clear that the District
Court did take care. See
supra, at 15. And the Court of
Appeals too proceeded with care, producing a detailed opinion that
is both true to the record and fair to the lower court and to the
parties’ submissions as well. I do not see how this Court can now
require lower court judges to take yet greater care, to proceed
with even greater caution, while at the same time expecting those
courts to enforce the statute as Congress intended.
Finally, we cannot and should not fail to
acknowledge the underlying subject matter of this proceeding. The
case concerns the rights of Spanish-speaking students, attending
public school near the Mexican border, to learn English in order to
live their lives in a country where English is the predominant
language. In a Nation where nearly 47 million people (18% of the
population) speak a language other than English at home, U. S.
Dept. of Commerce, Economics and Statistics Admin., Census Bureau,
Census 2000 Brief: Language Use and English-Speaking Ability 2
(Oct. 2003), it is important to ensure that those children, without
losing the cultural heritage embodied in the language of their
birth, nonetheless receive the English-language tools they need to
participate in a society where that second language “serves as the
fundamental medium of social interaction” and democratic
participation. Rodríguez, Language and Participation, 94 Cal.
L. Rev. 687, 693 (2006). In that way linguistic diversity can
complement and support, rather than undermine, our democratic
institutions.
Id., at 688.
At least, that is what Congress decided when
it set federal standards that state officials must meet. In doing
so, without denying the importance of the role of state and local
officials, it also created a role for federal judges, including
judges who must see that the States comply with those federal
standards. Unfortunately, for reasons I have set forth, see Part
II,
supra, the Court’s opinion will make it more difficult
for federal courts to enforce those federal standards. Three
decades ago, Congress put this statutory provision in place to
ensure that our Nation’s school systems will help
non-English-speaking schoolchildren overcome the language barriers
that might hinder their participation in our country’s schools,
workplaces, and the institutions of everyday politics and
government,
i.e., the “arenas through which most citizens
live their daily lives.” Rodríguez,
supra, at 694. I fear
that the Court’s decision will increase the difficulty of
overcoming barriers that threaten to divide us.
For the reasons set forth in this opinion, I
respectfully dissent.
APPENDIXES
A
PERFORMANCE ON CONTENT-BASED ASSESSMENT TESTS—SPRING
2006[
Footnote 1]
MATH
GRADE
ELL STUDENTS PASSING EXAM
NON-ELL AND RECLASSIFIED STUDENTS PASSING
EXAM
3
54%
94%
4
44%
91%
5
53%
88%
6
23%
82%
7
40%
82%
8
28%
70%
READING
GRADE
ELL STUDENTS PASSING
EXAM
NON-ELL AND PASSING
EXAM
3
40%
92%
4
19%
83%
5
22%
81%
6
14%
76%
7
13%
74%
8
31%
73%
WRITING
GRADE
ELL STUDENTS PASSING
EXAM
NON-ELL AND PASSING
EXAM
3
52%
82%
4
52%
87%
5
34%
80%
6
71%
97%
7
66%
98%
8
49%
94%
B
FUNDING
AVAILABLE TO NOGALES UNIFIED SCHOOL DISTRICT, PER STUDENT[Footnote 2]
TYPE
1999–2000
2000–2001
2001–2002
2002–2003
2003–2004
2004–2005
2005–2006
2006–2007
Base
level
$2,593
$2,618
$2,721
$2,788
$2,858
$2,929
$3,039
$3,173
ELL
funds
$156
$157
$163
$321
$329
$337
$349
$365
Other state ELL
funds
$0
$0
$0
$126
$83
$64
$0
$74
Federal Title I
funds
$439
$448
$467
$449
$487
$638
$603
$597
Federal Title II
funds
$58
$63
$74
$101
$109
$91
$92
$87
Federal Title
III (ELL) funds
$0
$0
$0
$67
$89
$114
$118
$121
State and
federal grants
$58
$56
$59
$47
$207
$214
4205
$109
TOTAL[Footnote
3]
$3,302
$3,342
$3,484
$3,899
$4,162
$4,387
$4,406
$4,605[Footnote
4]
Constant dollars (2006)[Footnote 5]
$3,866
$3,804
$3,904
$4,272
$4,442
$4,529
$4,406
$4,477
Total ELL funds
$156
$147
$163
$514
$501
$515
$467
$639
Footnote
1
App. to Pet. for Cert. in No. 08–289, p.
311.
Footnote
2
516 F. 3d 1140, 1159 (CA9 2008); App. to
Pet. for Cert. in No. 08–289, pp.
42–43.
Footnote
3
Nogales received less per-pupil funding in
2006 than the average provided by every State in the Nation. New
Jersey provided the highest, at $14,954; Arizona the third-lowest,
at $6,515. 2008 Digest.
Footnote
4
As of 2007, county override funds provided an
additional $43.43 per student. See 516 F. 3d, at
1158.
Footnote
5
Constant dollars based on the Consumer Price
Index (CPI).
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