Horne v. Flores Brief Amici Curiae in Support of Respondents
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March 25, 2009

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Brief Collection, LDF Court Filings. Horne v. Flores Brief Amici Curiae in Support of Respondents, 2009. 39f59b67-b89a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/92973f5d-cae8-4324-9c18-19d2240a7698/horne-v-flores-brief-amici-curiae-in-support-of-respondents. Accessed June 13, 2025.
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Nos. 08-289 and 08-294 In The Supreme (Eomrt oi tip ptmtefr States Thomas C. Horne, Arizona State Superintendent of Public Instruction, Petitioner, and Speaker of the Arizona House of Representatives and President of the Arizona Senate, Petitioners, v. Miriam Flores et al.; State of Arizona et al., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NATIONAL SENIOR CITIZENS LAW CENTER, NATIONAL HEALTH LAW PROGRAM, AND NEW YORK LAWYERS FOR THE PUBLIC INTEREST AS AMICI CURIAE IN SUPPORT OF RESPONDENTS JOSHUA CiVIN NAACP Legal Defense and Educational Fund, Inc. 1444 I Street, NW 10th Floor Washington, DC 20005 J ohn Payton, Director- Counsel Jacqueline A. Berrien Debo P. Adegbile *Anurima Bhargava Holly A. Thomas Leticia V. Smith-Evans NAACP Legal defense and Educational Fund, Inc. 99 Hudson Street, 16th FI. New York, NY 10013 (212) 965-2200* Counsel of Record (Additional counsel listed on inside cover) J ane Perkins National Health Law Program 211 N. Columbia Street Chapel Hill, NC 27514 Harper J ean Tobin National Senior Citizens Law Center 1444 Eye Street NW, Suite 1100 Washington, DC 20005 Marianne Engelman Lado New York Lawyers For The Public Interest 151 West 30th Street New York, NY 10001 QUESTIONS PRESENTED 1. W hether the district court abused its discretion in concluding tha t no significant change in fact or law justified dissolving its orders requiring the State of Arizona to determine the costs of an appropriate program for English Language Learner (ELL) students and to provide funding tha t was not arbitrary in relation to those costs. 2. W hether the court of appeals applied the correct standard in reviewing the district court’s denial of petitioners’ Rule 60(b)(5) motion. 3. W hether a state testing and accountability plan tha t is approved by the Secretary of Education as a condition for funding under the No Child Left Behind statute automatically satisfies the requirement under the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. § 1703(f), to “take appropriate action” to overcome language barriers tha t impede participation in instructional programs. TABLE OF CONTENTS Page QUESTIONS PRESENTED.........................................i TABLE OF CONTENTS........................ ii TABLE OF AUTHORITIES...................................... iv INTEREST OF AMICI CURIAE................................ 1 INTRODUCTION......................................................... 3 SUMMARY OF ARGUMENT......................................4 ARGUMENT.................................................................. 7 I. Because HB 2064 Violates Federal Law, It Forecloses Petitioners’ Claim for Rule 60(b)(5) Relief......................................................... 7 A. The System of State Support for ELL Programs Established by HB 2064 Violates Federal Education Law .................7 1. Background on HB 2064....................... 8 2. HB 2064 Violates 20 U.S.C. § 7902....................................................... 9 3. HB 2064 Also Violates the “Supplement, Not Supplant” Provisions of Federal Law ..................13 B. HB 2064’s Time Limit on ELL Instruction Violates Federal L aw ...........15 C. Petitioners May Not Disavow the Relevance of HB 2064 to Their Rule 60(b)(5) Motion............................................. 17 ii Ill II. Rule 60(b)(5) Relief Is Unwarranted Because Arizona Has Yet to Achieve, Much Less Sustain, Compliance with the District Court’s Prior O rd e rs .............. .................... ......19 A. As of the Date of Enactment of HB 2064, Arizona Could Not Demonstrate That It Had Established an Effective System to Provide Equal Educational Opportunity for English Language L earners........................................................ 19 B. Relief Under Rule 60(b)(5) Was Also Inappropriate Because Arizona Could Not Show a Likelihood That It Would Sustain Compliance.................................... 24 III. Petitioners Otherwise Fail to Identify a Significant Change in Law or Fact W arranting Rule 60(b)(5) Relief....................... 27 IV. The District Court’s Denial of Rule 60(b)(5) Relief Was Consistent with Principles of Federalism............................................................ 29 CONCLUSION............................................ 32 TABLE OF CONTENTS (continued) Page IV TABLE OF AUTHORITIES Cases Agostini v. Felton, 521 U.S. 203 (1997)........................... ....... .......... 27 Alexander v. Califano, 432 F. Supp. 1182 (N.D. Cal. 1977)................... 14 Board of Education of City School District of City of New York u. Tom F., 128 S.Ct. 1 (2007)....................................................3 Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991)............. 1, 20, 25, 31 Bennett v. Kentucky Department of Education, 470 U.S. 656 (1985).......................................... 8, 15 Bennett u. New Jersey, 470 U.S. 632 (1985).......................................... 8, 14 Brown v. Board of Education, 347 U.S. 483 (1954)..................................................1 Brown v. Board of Education, 349 U.S. 294 (1955).............................................. 21 Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981)...............................16 Christensen v. Harris County, 529 U.S. 576 (2000).............................................. 12 Columbus Board of Education v. Penick, 443 U.S. 449 (1979).............................................. 24 Federated Department Stores, Inc. v. Moitie, 452 U.S. 394 (1981)............................................. 20 Page(s) V Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984).......................... ..................... 7 Flores v. Arizona, 48 F. Supp. 2d 937 (D. Ariz. 1999)..........9, 30-31 Freeman v. Pitts, 503 U.S. 467 (1992)........................... . 1, 20, 24, 25 Frew v. Hawkins, 540 U.S. 431 (2004)................................... 7, 29, 31 Hull v. Albrecht, 950 P.2d 1141 (Ariz. 1997)...................................8 Hull v. Albrecht, 960 P.2d 634 (Ariz. 1998)..................................... 8 Missouri v. Jenkins, 515 U.S. 70 (1995)...................................... 1, 20-21 Morgan v. Nucci, 831 F.2d 313 (1st Cir. 1987)...............................24 Nevada v. United States, 463 U.S. 110 (1983)..............................................20 New Hampshire v. Maine, 532 U.S. 742 (2001)....................................... 17, 18 New York v. U.S. Department of Education, 903 F.2d 930 (2d Cir. 1990)................................ 14 Peacock v. Thomas, 516 U.S. 349 (1996).............................................. 31 TABLE OF AUTHORITIES (Continued) Page(s) V I Riggs v. Johnson County, 73U.S. 166 (1867)................................................ 31 Roosevelt Elementary School District No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994)............... .......8 Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992).......................................passim Skidmore v. Swift & Co., 323 U.S. 134 (1944).............................................. 12 Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1971)............................... 21 United States v. Oregon State Medical Society, 343 U.S. 326 (1952).............................................. 24 United States v. W.T. Grant Co., 345 U.S. 629 (1953).............................................. 26 Constitutional P rovisions Ariz. Const, art. XI, § 1(A)......................................... 8 Statutes and Legislative Materials 20 U.S.C. §§ 1234a-1234d....................................... 15 20 U.S.C. §§ 6301, et seq....... ....................................... 4 20 U.S.C. § 6311(g)(2).............. 15 20 U.S.C. § 6321(b)(1)............................................. 13 TABLE OF AUTHORITIES (Continued) Page(s) 20U.S.C. § 6623(b)...................................................... 13 20 U.S.C. § 6825(g)..............................................13, 15 20 U.S.C. §§ 1701, et seq..............................................3 20 U.S.C. § 1703(f)............. ......... .................. ......5; i 6 20 U.S.C. § 7902............................. ...passim 20 U.S.C. § 7709......................................................... 10 No Child Left Behind Act, Pub. L. No. 107-110, 115 Stat. 1980 (2002)............................................ ’... 10 A.R.S. § 15-751, et seq ................................................ 22 A.R.S. § 15-756.01....... 9 A.R.S. § 15-756.01(1).................................................. 9? i 0 A.R.S. § 15-756.04......................................................... 9 A.R.S. § 15-756.11......................................................... 9 A.R.S. § 15-756.11(E)..................................................13 A.R.S. § 15-756.11(G).................................................. 9, 16 A.R.S. § 15-943(2)(b).....................................................9 HB 2064, 47th Leg., 2d Reg. Sess. (Ariz. 2006).....................................................passim H.R. Rep. No. 95-1137, as reprinted in 1978 U.S.C.C.A.N. 4974.................. 8 Rules vii TABLE OF AUTHORITIES (Continued) Page(s) Fed. R. Civ. P. 60(b)(5) passim V l l l TABLE OF AUTHORITIES (Continued) Page(s) Other Authorities Letter from Kerri L. Briggs, Assistant Secretary of Elementary and Secondary Education, U.S. Department of Education, to Tom Horne, Superintendent of Public Instruction, Arizona Departm ent of Education (June 6, 2008).............................passim Letter from Kerri L. Briggs, Assistant Secretary of Elementary and Secondary Education, U.S. Department of Education, et al., to Chief State School Officers (October 2, 2008), available at h ttp ://www. ed. gov/programs/sfgp/ supplefinalletter2.pdf............................... 11 U.S. Department of Education, Supplement Not Supplant Provision of Title I I I of the ESEA (October 2, 2008), available at h ttp ://www .ed. gov/ programs/sfgp/ supplefinalattach2.pdf.................................passim U.S. Department of Justice, Educational Opportunities Section, Cases on English Language Learners, available at http://www.usdoj.gov/crt/edo/ caselist.php 29 http://www.usdoj.gov/crt/edo/ 1 INTEREST OF AMICI CURIAE* The NAACP Legal Defense & Educational Fund, Inc. (LDF) is a non-profit legal organization that assists African Americans and other people of color to secure their civil and constitutional rights. For more than six decades, LDF has worked to dismantle barriers in public education and ensure equal educational opportunity for all students. LDF has litigated numerous landm ark education cases, including Brown v. Board of Education, 347 U.S. 483 (1954). A significant portion of LDF’s docket has consistently been comprised of cases involving injunctive relief to remedy civil rights violations, and the standards for modification and term ination of court decrees are, therefore, of particular and continuing concern. Specifically, LDF has represented parties in several key cases before this Court involving relief pursuant to Federal Rule of Civil Procedure 60(b), including Missouri v. Jenkins, 515 U.S. 70 (1995); Freeman v. Pitts, 503 U.S. 467 (1992); and Board of Education of Oklahoma City v. Dowell, 498 U.S. 237 (1991). The National Senior Citizens Law Center (NSCLC) is a non-profit organization that advocates 1 P u rsu an t to Rule 37.6, counsel for amici s ta te th a t no counsel for a p a rty authored th is brief in whole or in part, and th a t no person other th an amici, their members, or their counsel m ade a m onetary contribution to the preparation or subm ission of th is brief. Respondents Flores et al., have filed a b lanket consent le tter w ith the Clerk of the Court; le tte rs of consent from all o ther parties are lodged w ith the C lerk of the Court p u rsu an t to Rule 37.3. 2 nationwide to promote the independence and well being of low-income older persons and people with disabilities. For more than 35 years, NSCLC has served these populations through litigation, administrative advocacy, legislative advocacy, and assistance to attorneys and paralegals in legal aid programs. NSCLC believes tha t proper application of the Rule 60(b) standard is essential to m aintaining the effectiveness of federal laws that protect its constituents’ health, safety, and security. The National Health Law Program (NHeLP) is one of the country’s oldest public interest law firms and works on behalf of low-income people, children, people of color, and limited-English proficient persons to improve access to needed health care services. NHeLP provides legal and policy analysis, advocacy, information, and education. When they are unable to resolve disputes on behalf of clients, NHeLP attorneys engage in litigation to protect clients’ rights, safety, and ability to be healthy. NHeLP attorneys’ work depends on the ability to enforce settlements and court orders when they are violated. New York Lawyers for the Public Interest (NYLPI) is a not-for-profit civil rights organization and a federally-funded Protection and Advocacy agency. NYLPI engages in advocacy and litigation on behalf of low income and disadvantaged individuals in New York City. A significant portion of NYLPI’s work is on behalf of individuals with disabilities. In this context, NYLPI works to ensure tha t children with special educational needs are afforded a free and appropriate public education. NYLPI regularly engages in litigation seeking 3 injunctive relief for civil rights violations and currently monitors consent decrees in cases involving the provision of m ental health services for inmates with mental illness, the deinstitutionalization of individuals with mental retardation, and access to public and private spaces for individuals with physical disabilities. NYLPI participated as an amici in Board of Education of City School District of City of New York u. Tom F., 128 S.Ct. 1 (2007). INTRODUCTION Nine years ago, a federal district court found that Arizona had denied thousands of English Language Learner (ELL) students in the Nogales Unified School District (Nogales) and throughout the state the basic educational opportunities they need to succeed in life. Accordingly, the district court held th a t Arizona’s ELL programs were in violation of the Equal Educational Opportunities Act of 1974 (EEOA), 20 U.S.C. §§ 1701, et seq. The district court’s final judgment against the state was not appealed. Now, petitioners seek relief from th a t final judgment under Federal Rule of Civil Procedure 60(b)(5), claiming compliance with the judgment. Over the entire course of these nine years, however, the state has persistently failed to comply with the obligations of the final judgment. That noncompliance is a sufficient ground to deny petitioners Rule 60(b)(5) relief. There is also a simpler and equally compelling reason for this Court to affirm: As the courts below determined and as recent guidance from the U.S. 4 Departm ent of Education confirms, HB 2064—-the state legislature’s measure adopted in 2006 and asserted as the basis for state compliance with the district court’s judgment—flatly contravenes federal law. See HB 2064, 47th Leg., 2d Reg. Sess. (Ariz. 2006). It was on this basis tha t the State of Arizona and the Arizona Board of Education, originally defendants in this case, refused to join the three state officials who are petitioners here in their request for Rule 60(b)(5) relief. Because HB 2064 plainly violates federal law, this Court can affirm the decision below without entering the educational policy debates that petitioners and their amici discuss a t length; without addressing the relationship between the EEOA and the No Child Left Behind Act (NCLB), 20 U.S.C. §§ 6301, et seq.; and without accepting petitioners’ request for de novo review of the district court’s detailed factual findings of persistent noncompliance with its 2000 judgment and subsequent remedial orders. SUMMARY OF ARGUMENT Petitioners invoke Rule 60(b)(5) which provides th a t “[o]n motion and just terms, the court may relieve a party . . . from a final judgment” for specified reasons. Of particular relevance to this case, relief may be granted if “the judgment has been satisfied” or if “applying [that judgment] prospectively is no longer equitable.” Fed. R. Civ. P. 60(b)(5). In the district court, the primary basis for petitioners’ Rule 60(b)(5) motion was tha t HB 2064 5 satisfied the original 2000 judgment by fulfilling Arizona’s obligation under the EEOA “to take appropriate action to overcome language barriers th a t impede equal participation by its students in its instructional programs.” 20 U.S.C. § 1703(1); see J.A. 65. But the law is clear tha t a moving party is not entitled to Rule 60(b)(5) relief where, as here, the basis it advances for tha t relief violates federal law: • First, HB 2064 contravenes federal statutory provisions designed to ensure tha t states and local school districts use federal NCLB funds to provide educational programs for ELL and other subgroups of students above and beyond what they otherwise would provide. • Second, HB 2064 violates the EEOA by arbitrarily cutting off state funds for ELL classroom instruction after a student has received services for two years, irrespective of whether tha t student is sufficiently fluent in English to participate in a m ainstream program or whether the school district has adequate funds of its own to continue such instruction. See infra P art I. In apparent recognition of these violations, petitioners shifted positions and now assert th a t the state had satisfied the district court’s judgment prior to (and notwithstanding) the enactment of HB 2064, and is thus entitled to Rule 60(b)(5) relief. Again, the controlling law is clear. For a moving party to obtain relief based on its satisfaction of a prior judgment, a manifest prerequisite is good-faith, substantial, and sustainable compliance. Otherwise, principles of finality would be severely undermined. 6 Here, Arizona failed to demonstrate tha t it has ever—before or after passage of HB 2064—fully remedied the EEOA violations identified by the court’s prior orders, much less tha t the state has the commitment and capacity to sustain any improvements in ELL programs th a t have been made since the 2000 judgment. See infra P art II. Petitioners likewise do not w arrant relief under the equitable prong of Rule 60(b)(5) because they have not demonstrated a significant change in law or fact. See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 (1992). First, any changed factual circumstances have reduced the burden of satisfying the district court’s prior orders and thus do not meet the Rufo standard. Second, this Court need not reach petitioners’ contention tha t the 2002 enactment of NCLB qualifies as a significant change in law for purposes of Rule 60(b)(5). Given tha t HB 2064 violates key NCLB provisions, this is not an appropriate case to decide whether a state’s compliance with NCLB satisfies its obligations under the EEOA. See infra P art III. Finally, the district court’s actions since 2000 have been consistent with principles of federalism. The district court reviewed the state’s funding scheme under a deferential arbitrary-and-capricious standard, repeatedly extended deadlines, respected the state’s policy judgments, and worked within the framework chosen by the state for administering and funding ELL programs. In light of the deference accorded by the district court, the state’s continuing failures to comply, and its recent enactment of a legally flawed framework for ELL programs through HB 2064, there are no grounds for the Rule 60(b)(5) 7 relief tha t petitioners seek. Federal courts must be sensitive to federalism tenets, but are not limited to identifying legal violations and “hoping for compliance.” Frew v. Hawkins, 540 U.S. 431, 440 (2004). See infra Part IV. ARGUMENT I. B ecause HB 2064 V iolates Federal Law, It F orecloses P etition ers’ Claim for Rule 60(b)(5) Relief. In the district court, petitioners proffered the state legislature’s 2006 enactment of HB 2064 as the primary ground for their Rule 60(b)(5) motion. J.A. 65. But HB 2064 cannot provide a basis for Rule 60(b)(5) relief because it violates federal law in several ways. As this Court held in Rufo, a Rule 60(b)(5) modification “must not create or perpetuate” a violation of federal law. 502 U.S. a t 391; see also Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 576-79 & n.9 (1984) (noting tha t a district court cannot enter a disputed modification of a consent decree if the resulting order is inconsistent with federal law). A. The System o f State Support for ELL Program s Established by HB 2064 V iolates Federal Education Law. The laws governing the disbursement of federal NCLB funds require states and school districts to use those funds to enhance existing resources for targeted student populations, including ELL students. Such provisions ensure tha t limited federal funds are used as Congress intended: to 8 enhance educational opportunities by providing ‘“specific types of children in specific areas with special services above and beyond those normally provided as part of the district’s regular educational program.’” Bennett v. New Jersey, 470 U.S. 632, 635 (1985) (quoting H.R. Rep. No. 95-1137, at 4, as reprinted in 1978 U.S.C.C.A.N. 4974); accord Bennett v. Kentucky Dep’t of Educ., 470 U.S. 656, 659 (1985). In direct contravention of these laws, HB 2064 demands tha t state funding for ELL students be reduced by the amount of federal funds th a t a particular school district receives. 1. Background on HB 2064. HB 2064 modifies, but does not fundamentally change, the approach to state educational funding in place prior to and since 2000, when the district court concluded tha t the state was in violation of the EEOA. Arizona continues to allocate state funds to school districts using a weighted funding system to ensure tha t all students receive a basic education as required by the state constitution. Ariz. Const, art. XI, § 1(A); Pet.App. 122a-123a.2 This weighting system recognizes that some classes of students, such as ELL students, need extra programs or services to atta in the basic educational competencies tha t the state constitution 2 In a series of 1990s decisions, the Arizona Suprem e Court in terp re ted the sta te constitution to guaran tee sta te funding to ensure school districts m eet basic standards. See Roosevelt Elem entary Sch. Dist. No. 66 v. Bishop, 877 P.2d 806 (Ariz. 1994) (en banc), appeal after remand, H ull v. Albrecht, 950 P.2d 1141 (Ariz. 1997), appeal after remand, 960 P.2d 634 (Ariz. 1998). 9 guarantees, and tha t there are additional costs specifically associated with those programs. See Pet.App. 13a; see also Flores v. Arizona, 48 F. Supp. 2d 937, 947, 956 (D. Ariz. 1999). To cover these additional costs, the state adds “Group B weights” to the base level of funding provided to local school districts. See A.R.S. § 15-943(2)(b). The system is structured so tha t the state serves as a necessary backstop when school district resources are insufficient to support the constitutionally required minimum program. See Pet.App. 126a. HB 2064 slightly raised the Group B weight per ELL student, but made the increase contingent on the district court’s determination tha t HB 2064 satisfied the 2000 judgment. A.R.S. § 15-756.01. HB 2064 also established two new separate funding sources for ELL programs: a structured English immersion (SEI) fund, A.R.S. § 15-756.04, and a compensatory instruction fund, A.R.S. § 15-756.11. Pursuant to HB 2064, a school district may apply to the state SEI fund for additional resources to cover the difference between the support generated by the Group B weights and the district’s actual cost of funding ELL programs. A.R.S. § 15-756.01(1). The compensatory instruction fund offers school districts monies to provide tutoring, summer school, and other programs to improve English proficiency outside the “normal classroom” environment. A.R.S. § 15-756.11(G). 2. HB 2064 V iolates 20 U.S.C. § 7902. As the district court and court of appeals held, there is a direct and unavoidable conflict between HB 2064’s ELL funding requirements and 20 U.S.C. 10 § 7902. See Pet.App. 86a, 113a. 20 U.S.C. § 7902 is the product of revisions to the Elementary and Secondary Education Act of 1965 (ESEA), effectuated by the enactment of NCLB in 2002. See Pub. L. No. 107-110, § 9522, 115 Stat. 1980 (2002). It prohibits a state from taking into account federal education funding received by a school district pursuant to NCLB when “determining the eligibility of [the school district] for State aid, or the amount of State aid, with respect to free public education of children.”3 In other words, states must not penalize school districts tha t receive federal education dollars by adjusting those districts’ share of otherwise available state education funding. HB 2064 violates 20 U.S.C. § 7902 because it requires a school district to reduce its request for SEI funding by the amount of NCLB funds the school district receives, including: (i) “[a] 11 federal [T]itle III monies and any other federal monies designated solely for the educational needs of English language learners,” and (ii) a proportional amount of Title I and Title IIA funds determined by the number of students in the district’s ELL programs. A.R.S. § 15-756.01(1). As the state respondents acknowledge, see State Respondents’ Br. 11, HB 2064 thus “manifestly requires tha t federal funds be considered” in the distribution of state SEI funds to school districts. Pet.App. 86a (internal citations omitted); see also Pet.App. 113a. 3 Although it is not determ inative here, 20 U.S.C. § 7902 includes an exemption for federal im pact aid received by school d istricts p u rsu an t to 20 U.S.C. § 7709. 11 In June 2008, four months after the court of appeals’ decision, the U.S. Department of Education wrote to petitioner Tom Horne, the Arizona Superintendent of Public Instruction, to express the Departm ent’s concerns about the contradiction between HB 2064 and federal law. See Letter from Kerri L. Briggs, Assistant Sec’y of Elementary and Secondary Educ., U.S. Dep’t of Educ., to Tom Horne, Superintendent of Pub. Instruction, Ariz. Dep’t of Educ. (June 6, 2008) (hereinafter the “Horne letter”); State Respondents’ Br. 19 & App. 1-4.4 In the Horne letter, the Department warned Arizona tha t 20 U.S.C. § 7902 clearly prohibits any reduction in the amount of state SEI funds tha t a school district is eligible to receive, if the reduction is based on that district’s receipt of federal NCLB funds. Id. App. 2. Four months later, the U.S. Department of Education expanded on the Horne letter and issued guidance “to provide States with information on several funding issues . . . under Title III of the ESEA,” which governs NCLB programmatic funding targeted at ELL students. See U.S. Dep’t of Educ., Supplement Not Supplant Provision of Title III of the ESEA (Oct. 2, 2008) (hereinafter “Title III Guidance”).5 The Title III Guidance addressed the operation of 20 U.S.C. § 7902 in circumstances 4 A copy of the Horne le tter is included in the appendix to the sta te respondents’ brief. 5 The T itle III guidance and the D epartm ent’s tran sm itta l le tte r are available at: http://www.ed.gov/programs/sfgp/ supplefinalattach2.pdf and http://www.ed.gov/programs/sfgp/ supplefinalletter2 .pdf. http://www.ed.gov/programs/sfgp/ http://www.ed.gov/programs/sfgp/ 12 identical to those created by the provisions of HB 2064 at issue here: The Departm ent has encountered situations in which a State proposed to implement a law to reduce the amount of State aid available to local educational agencies (LEAs) for implementing language instruction educational programs for [ELL] students based on the amount of Title III funds its LEAs receive. Such statutes and policies violate Federal law. Section 9522 of the ESEA [20 U.S.C. § 7902] specifically prohibits a State from taking into consideration payments under any ESEA program (with the exception of Impact Aid) in determining the amount of State aid an LEA receives for the free public education of its children. Title III Guidance 2-3. The Horne letter and the Departm ent’s Title III Guidance have persuasive power and are thus “‘entitled to respect.’” Christensen v. Harris County, 529 U.S. 576, 587 (2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)). Accordingly, they confirm the conclusions of the courts below th a t the SEI funding requirements set forth by HB 2064 violate 20 U.S.C. § 7902.6 6 The district court and the U.S. D epartm ent of Education addressed HB 2064’s violation of 20 U.S.C. § 7902 only w ith respect to SEI funding. As the court of appeals correctly observed, a violation of § 7902 is equally app aren t w ith respect to HB 2064’s com pensatory instruction requirem ents, which effectively penalize school d istricts by providing them w ith less 13 3. HB 2064 Also V iolates the “Supplem ent, Not Supplant” P rovisions o f Federal Law. As the district court determined, HB 2064 also violates “supplement, not supplant” requirements contained in certain NCLB provisions, including Title I (which funds programs for disadvantaged students generally), Title IIA (which funds highly qualified teachers), and Title III (which funds ELL programs). See, e.g., 20 U.S.C. § 6321(b) (Title I); 20 U.S.C. § 6623(b) (Title IIA); and 20 U.S.C. § 6825(g) (Title III). These requirements specifically forbid states and school districts from using these federal funds to replace state and local funding resources. See Pet.App. 114a; Title III Guidance 3; State Respondents’ Br. App. 3.7 In the Horne letter, the U.S. Department of Education stressed tha t HB 2064’s treatm ent of federal funds received by Arizona school districts pursuant to NCLB Titles I, IIA, and III violated an ti supplanting prohibitions because, “in the absence of these Federal funds, the district would have received and expended more State funds to serve ELL students.” State Respondents’ Br. App. 3. The Departm ent’s subsequent Title III Guidance reminded Arizona and all other states that “any reduction in the amount of State funds [a school com pensatory instruction funding to the extent they receive federal dollars. A.R.S. § 15-756.11(E); Pet.App. 86a-87a. 7 In light of its determ ination th a t HB 2064 clearly violated 20 U.S.C. § 7902, the court of appeals did not consider w hether HB 2064 also violated these “supplem ent, not supplan t” provisions. Pet.App. 88a-89a, 14 district] receives to implement language instruction educational programs based on the receipt of Federal funds for its [ELL] population under Title III violates the non-supplanting provision” of tha t Title. Title III Guidance 3.8 As this Court has noted, supplement-not- supplant obligations are not mere technicalities. See Bennett, 470 U.S. a t 635. “Recognizing the fungibility of funds in state and local education budgets,” these provisions effectively “limit the possibility tha t state and local educational agencies would use [federal] funding merely to m aintain existing programs for educationally disadvantaged children while shifting [state and local] resources to regular educational programs.” New York v. U.S. Dep’t of Educ., 903 F.2d 930, 934 (2d Cir. 1990); see also Alexander v. Califano, 432 F. Supp. 1182, 1189 (N.D. Cal. 1977) (Schwarzer, J.) (“[C]hildren eligible for Title I aid are not for tha t reason to receive less than they would otherwise be entitled to receive under any State or local program.”) (emphasis in original). HB 2064’s clear violation of federal an ti supplanting requirements has serious consequences. As the district court found, “a district or school whose incremental costs [for ELL students] exceed the Group B weight provided to all schools will face 8 The D epartm ent’s position should have come as no surprise to petitioners. Thom as Fagan—a 29-year D epartm ent veteran and Title I funding expert who testified for respondents during the district court’s 2007 evidentiary hearing—stated th a t he had ‘“never seen such a b la tan t violation’ of supplem ent not supplan t restric tions.” Pet.App. 106a. 15 the choice of violating federal laws governing the use of their federal funds, thereby jeopardizing both those funds and eligibility for future federal funds, or underfunding [their] ELL instructional programs,” thus violating its EEOA obligations. Pet.App. 114a. By effectively compelling systemic underfunding of ELL instruction, HB 2064 also violates the EEOA. Id.; see also Title III Guidance 2 (concluding tha t use of NCLB Title III ELL funds “to provide core language instruction educational programs . . . would violate the supplement not supplant provision in section 3115(g) [20 U.S.C. § 6825(g)] of the Act as such services are required [under the EEOA and other laws] to be provided by States and districts regardless of the availability of Federal Title III funds”). Potential penalties for supplanting state dollars with federal dollars are significant; they include withholding or repayment of all federal educational funds Arizona receives. 20 U.S.C. §§ 1234a-1234d, 6311(g)(2); see also Bennett, 470 U.S. a t 662-66. For this reason, the state respondents did not join petitioners’ motion for Rule 60(b)(5) relief. See State Respondents’ Br. 16. B. HB 2064’s Time Limit on ELL Instruction V iolates Federal Law. HB 2064’s arbitrary two-year restriction on SEI and Group B weighted funding of ELL education also violates the EEOA. Pet.App. 114a-115a. After two years, school districts must choose between placing an ELL student in mainstream classes, even if they have not been reclassified as proficient in English, or diverting funds from other parts of their 16 educational programs for ELL instruction. While compensatory instruction funds rem ain available to school districts after two years, they may be used only for programs outside the “normal classroom” environment. A.R.S. § 15-756.11(G). The EEOA places no such time limit on a state’s obligation to ELL students. See 20 U.S.C. § 1703(f). Rather, the EEOA seeks to ensure “th a t schools [have] made a genuine and good faith effort . . . to remedy the language deficiencies of their students.” Castaneda v. Pickard, 648 F.2d 989, 1009 (5th Cir. 1981) (emphasis added). At the district court’s 2007 evidentiary hearing, “[w]hile all witnesses agreed th a t some students may swiftly become proficient in English, they also agreed tha t many will need ELL instruction for more than two years, and th a t some will still need help after three years of training.” Pet.App. 34a. The district court made subsequent factual findings th a t the average time students spend in ELL programs well exceeded HB 2064’s two-year cut-off, including in Nogales, where, “[o]n average, it takes ELL students . . . four to five years to be reclassified as English proficient.” Pet.App. 108a. By abandoning non-English proficient students to struggle in mainstream classes after only two years of ELL instruction, HB 2064 does not represent a good-faith (or even reasonable) attem pt to comply with the EEOA’s requirement tha t students receive “‘language assistance [that will] enable them to participate in the instructional program of the district.’” Pet.App. 8a (quoting Castaneda, 648 F.2d at 1008). 17 C. P etitioners May Not D isavow the R elevance o f HB 2064 to Their Rule 60(b)(5) Motion. In apparent recognition of the deficiencies inherent in HB 2064, petitioners have shifted away from their prior reliance on HB 2064 as the primary basis for their Rule 60(b)(5) motion. Before this Court, they assert that they are entitled to Rule 60(b)(5) relief irrespective of HB 2064. See Superintendent’s Br. 7, 33-51; Legislative Petitioners’ Br. 31-32. Significantly, neither of the petitioners’ merits briefs even mentions 20 U.S.C. § 7902 or NCLB’s non-supplanting provisions. Petitioners should be estopped from disavowal of their prior reliance upon HB 2064 as the primary basis for Rule 60(b)(5) relief. In New Hampshire v. Maine, 532 U.S. 742 (2001), this Court noted tha t the purpose of judicial estoppel “is to protect the integrity of the judicial process, by prohibiting parties from deliberately changing positions according to the exigencies of the moment.” Id. at 749-50 (internal quotation marks and citations omitted). For the legislative petitioners, HB 2064 was the primary rationale for their involvement in this case. See Pet.App. 175a, 176a. In their motion to intervene filed just days after HB 2064 was enacted, they asserted th a t their involvement was necessary “to allow a full defense” of HB 2064. J.A. 57; see also J.A. 81 (state house of representatives resolution authorizing intervention specifically “to defend the new state plan for English language learners as enacted in H.B. 2064”); J.A. 84 (state senate 18 resolution providing a similarly focused rationale for intervention). Petitioners now seek to disavow their early reliance on HB 2064 precisely to refashion their flawed theory to meet the “exigencies of the moment.” New Hampshire, 532 U.S. a t 750. Yet, without consideration of the statu te tha t was the state’s direct response to the district court’s prior orders, and which governs operation of ELL programs in Arizona to this day, it would be impossible to rule on petitioners’ Rule 60(b)(5) motion. Even if petitioners are not estopped from disavowal of their reliance upon HB 2064 as the primary basis for Rule 60(b)(5) relief, petitioners cannot meet their Rule 60(b)(5) burden to demonstrate th a t they have otherwise complied with the district court’s judgment. Indeed, legislative petitioners admitted below tha t they would have difficulty asserting grounds for Rule 60(b)(5) relief without HB 2064. See J.A. 59-60 (“If the Court finds the Act to be inadequate to satisfy the Court’s orders, the Court may compel the Legislature to return to the task and to find money to pay for increased spending . . . .”).9 9 P etitioners seek to have it both ways. See, e.g., S uperin tenden t’s Br. 15 n.9 (noting th a t HB 2064 “fu rther advanced ELL education”). The testim ony a t the evidentiary hearing regarding purported im provem ents in ELL program s in Nogales relied significantly on in itiatives im plem ented as a re su lt of HB 2064. See, e.g., J.A. 181-85, 212. 19 II. Rule 60(b)(5) R elief Is Unw arranted B ecause Arizona Has Yet to Achieve, Much Less Sustain , Com pliance w ith the D istrict Court’s Prior Orders. Petitioners also argue tha t Rule 60(b)(5) relief is w arranted because, even before enactment of HB 2064, the state had complied fully with the 2000 declaratory judgment and “cured” the EEOA violations. Superintendent’s Br. 32. Petitioners failed to demonstrate tha t the state satisfied the judgment for two reasons. First, based upon a thorough review of the record, the district court determined, and the court of appeals agreed, tha t petitioners had not demonstrated actual compliance with prior orders. Second, to the extent tha t Arizona has taken some steps towards remedying the EEOA violations identified by the district court, the adoption of HB 2064 and other recent actions raise serious doubts about the state’s good-faith commitment and capacity to sustain any such progress. A. As o f the Date o f Enactm ent o f HB 2064, Arizona Could Not D em onstrate That It Had Established an Effective System to Provide Equal Educational O pportunity for English Language Learners. The posture of this case is significant. This is not an appeal from the judgment of the district court. Instead, this is a prayer to be relieved from that unappealed final judgment. Petitioners do not dispute the district court’s finding that, as of 2000, the state legislature’s failure to raise base funding amounts to cope with inflation and to identify 20 properly the extra costs of programs for ELL students caused significant educational shortfalls for ELL students in Nogales and statewide, including programmatic deficiencies in teachers, tutors, and class size. See Superintendent’s Br. 8-13; Legislative Petitioners’ Br. 18. Indeed, there was no appeal of the district court’s judgment th a t those educational deficiencies and the failure of the state to present a rational funding structure to support programs for ELL students violated the EEOA. Therefore, all state officials, including the three petitioners here, are bound to satisfy the district court’s mandate. See Nevada v. United States, 463 U.S. 110, 129-30 (1983); Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 401 (1981). Arizona has not met its burden of demonstrating tha t it is entitled to Rule 60(b)(5) relief because it has never satisfied the term s of the original unappealed judgment. “[I]n deciding whether to modify or dissolve a[n injunctive] decree, a[n enjoined party]’s compliance with previous court orders is obviously relevant.” Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 249 (1991). “Among the factors which must inform the sound discretion of the court in ordering partial withdrawal [of judicial supervision] are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn . . . .” Freeman v. Pitts, 503 U.S. 467, 491 (1992); accord Missouri v. Jenkins, 515 U.S. 70, 89 21 (1995).10 Petitioners, however, can point to no record of good-faith compliance with the court’s orders.11 Following the original 2000 judgment, the state failed to create an effective system to ensure tha t ELL students receive equal educational opportunities in Arizona’s public schools and tha t the state serves as the appropriate backstop when local funding is insufficient to cover the critical needs of ELL students. Most significantly, the state neither articulated a non-arbitrary rationale for its backstop funding of ELL programs nor specified the costs to school districts of providing the various elements of an adequate ELL program. In framing the original 2000 order, the district court relied on the state’s representation tha t the 10 The cited cases were school desegregation actions, but the principles announced and applied by th is Court extend to injunctive relief cases in general. In Brown v. Board o f Education, 349 U.S. 294 (1955) (Brown IT), th is Court stated th a t “[i]n fashioning and effectuating the decrees [in those cases], the courts will be guided by equitable principles.” Id. a t 300. T hat point was reaffirm ed in Sw ann v. Charlotte- M ecklenburg Board o f Education, 402 U.S. 1 (1971), w here the Court observed th a t “a school desegregation case does not differ fundam entally from other cases involving the fram ing of equitable rem edies to repair the denial of a constitutional righ t.” Id. a t 15-16. 11 This Court’s decision in Rufo does not set a s tandard for determ ining w hether Rule 60(b)(5) relief is w arran ted because a party has satisfied a prior judgm ent. Rufo addressed only the equitable prong of Rule 60(b)(5), as discussed fu rth e r in fra in P a rt III, and petitioners cite Rufo in only a cursory fashion in the portions of their briefs contending th a t the 2000 judgm ent has been satisfied. See Superin tendent’s Br. 34-35; Legislative Petitioners’ Br. 31-44. 22 legislature had established a committee to conduct a cost study, noting that this study would provide “the first step the state needed to take towards setting a minimum base funding level for [ELL] programs tha t would not be arbitrary and capricious.” J.A. 32- 33. The committee did submit a report, but it failed to recommend the level of funding necessary to support effective ELL programs. J.A. 33. In October 2000, ten months after issuance of the declaratory judgment, the district court observed th a t Arizona “ha[d] not even taken the first step” toward compliance, and ordered Arizona to “prepare a cost study to establish the proper appropriation to effectively implement” ELL programs “in a timely fashion.” J.A. 34, 39, 42. In November 2000, a voter referendum, Proposition 203, required school districts to change to structured English immersion as their model for ELL instruction. J.A. 387; A.R.S. § 15-751, et seq. Proposition 203 did not alter the sta te’s obligation under the original 2000 judgment. See Pet.App. 150a. Accordingly, “the State agreed th a t the cost study that was to be prepared pursuant to the Court’s October 12, 2000 Order would reflect the funding and resources necessary to train and develop teachers of ELL students under the Proposition.” J.A. 387. The cost study released in 2001 “proved to be a disappointment” because it did not provide the data necessary for the state to begin remedying the EEOA violation. Pet.App. 16a. Moreover, the legislature did not appropriate funds based on this study. Pet.App. 17a; J.A. 42. In June 2001, the district court again ordered Arizona to establish a funding system tha t “shall bear a rational relationship to the 23 actual funding needed” for ELL students to m aster basic state-specified academic skills, and set a deadline of January 31, 2002 for compliance. J.A. 44. In December 2001, the legislature enacted HB 2010, which provided for a more comprehensive cost study and increased ELL funding in the interim. Pet.App. 156a-157a. In a June 2002 order, the district court deemed HB 2010’s funding levels adequate “as an interim measure pending” the cost study funded by the statute. J.A. 54. The final draft of the cost study was not submitted until February 2005. Pet.App. 19a. While the cost study included expert estimates of ELL funding levels appropriate to support EEOA-compliant programs, the State once again failed to implement its findings. Id. In a January 2005 order, the district court gave the state until the later of the close of the 2005 legislative session or April 30, 2005 to “appropriately and constitutionally fund[ ] the state’s ELL programs taking into account the Court’s previous orders.” J.A. 393. Arizona did not meet either deadline. In December 2005, the district court held the state in contempt, Pet.App. 155a, but gave it yet another chance. The district court set a new deadline 15 days after the beginning of the 2006 legislative session. Pet.App. 173a. In response, the state legislature enacted HB 2064, which became law on March 9, 2006. Pet.App. 268a. In sum, while overall state education funding levels may have increased from 2000 through the enactment of HB 2064, the state failed to establish a rational system to determine and then meet the ELL funding needs of school districts. 24 B. R elief Under Rule 60(b)(5) Was Also Inappropriate B ecause Arizona Could Not Show a L ikelihood That It Would Sustain Compliance. Even if Arizona’s actions between the 2000 judgment and the spring of 2006 positively impacted educational opportunity for ELL students, Rule 60(b)(5) relief was correctly denied because petitioners failed to show tha t the state would continue to meet the needs of ELL students if the injunction were withdrawn. Such a threshold demonstration of sustainability is required. See United States v. Oregon State Med. Soc’y, 343 U.S. 326, 333 (1952) (“It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when . . . there is probability of resumption.”). In assessing sustainability, examination of a moving party’s record of good-faith compliance with previous court orders is again instructive, for it “reduces the possibility tha t [the party]’s compliance with court orders is but a temporary . . . ritual.” Freeman, 503 U.S. a t 498-99 (quoting Morgan v. Nucci, 831 F.2d 313, 321 (1st Cir. 1987)). This Court announced in Freeman th a t where such a record of compliance is absent, “we have without hesitation approved comprehensive and continued district court supervision.” Id. at 499 (citing Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 461 (1979)). Here, the district court noted that for the seven years “[pjrior to the end of the 2007 Legislative Session no action was taken to comply with the Original [2000] Order.” J.A. 87. While the state 25 finally took some action in 2006 by passing HB 2064, it still failed to meet the district court’s repeated and straightforward request for a system of support for ELL programs th a t was rationally related to the program models the state itself recommended. This failure led the district court to conclude tha t Arizona was still in “willful violation” of its prior orders without a proper defense for its “inability to comply.” J.A. 89. To demonstrate sustainability, Arizona must also show th a t it is unlikely tha t it will again violate federal law. See Freeman, 503 U.S. at 498 (noting tha t a “history of good-faith compliance . . . enables the district court to accept the school board’s representation tha t it has accepted the principle of racial equality and will not suffer intentional discrimination in the future”); Dowell, 498 U.S. at 247 (holding tha t the “purposes of the desegregation litigation had been fully achieved” when the school district was being operated in compliance with the law and “it was unlikely that the Board would return to its former ways”). Here, the deficiencies of HB 2064 stand as irrefutable evidence of Arizona’s failure to establish a sustainable structure that meets the requirements of the EEOA. Pet.App. 179a. Indeed, HB 2064 makes things worse, by requiring Arizona and local school districts to violate multiple federal laws. See supra Part I. Because of these defects, any progress that Arizona school districts have made is likely to be “fleeting at best.” Pet.App. 100a. After the eight- day evidentiary hearing on petitioners’ Rule 60(b)(5) motion, the record was clear th a t Nogales, the district from which this lawsuit originally arose, has 26 not received adequate funding from the State, forcing it to draw monies away from other programs and students to support instruction for ELL students and to pass repeated local tax overrides to m aintain adequate funding levels. Neither of these approaches is sustainable. Nogales Superintendent Guillermo V. Zamudio testified that, even with the district’s commendable streamlining of school programming and creation of greater economies of scale, resource constraints undermine the district’s ability to provide an appropriate education to its ELL students. See Pet.App. 36a-37a. Even petitioners acknowledge th a t Nogales and other school districts in Arizona are likely to face additional financial difficulties and budgetary shortfalls given the worsening economic crisis and the impact of the dramatic increase in foreclosures and changing property values on local tax revenues. See Legislative Petitioners’ Br. 2. In this climate, a rational and equitable state funding structure tha t serves as an appropriate backstop when local funds may be inconsistent or lacking is critically important. In the wake of HB 2064, Arizona cannot demonstrate th a t violations of federal laws will not continue to recur. Cf. United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953) (holding tha t an injunction requires a “necessary determination . . . th a t there exists some cognizable danger of recurrent violation”), and Rule 60(b)(5) relief was thus properly denied. 27 III. P etitioners O therwise Fail to Identify a Sign ificant Change in Law or Fact W arranting Rule 60(b)(5) Relief. To grant relief under the equitable prong of Rule 60(b)(5), a court must determine tha t a legally significant change in factual conditions or in law has occurred. Agostini v. Felton, 521 U.S. 203, 215 (1997); Rufo, 502 U.S. at 384. Apart from HB 2064, which does not justify relief for the reasons set forth above, petitioners have not met their burden of identifying a sufficient legal or factual basis for Rule 60(b)(5) relief. In Rufo, this Court identified three types of changes in fact tha t might w arrant modification: (1) “when changed factual conditions make compliance with [a consent decree or an injunction] substantially more onerous”; (2) when a decree or injunction “proves to be unworkable because of unforeseen obstacles”; or (3) “when enforcement of the decree without modification would be detrimental to the public interest.” Rufo, 502 U.S. at 384. Modification is not permitted simply because “it is no longer convenient to live with the [prior court orders’] terms.” Rufo, 502 U.S. a t 383. Here, petitioners do not allege tha t changed circumstances have made compliance more “onerous” or “unworkable”; rather, the alleged improvements in ELL programs and funding have made compliance easier. Indeed, petitioners identify no obstacles nor barriers to compliance; and, provided they correct the violations of federal law described supra in Part I, the state could readily take the steps necessary to support adequately its chosen ELL programs—as the 28 district court noted in its October 10, 2007 order following denial of Rule 60(b)(5) relief. J.A. 89-90. The district court’s view tha t compliance was so close at tha t time suggests tha t Rule 60(b)(5) relief was (and remains) entirely unnecessary. Petitioners fail to demonstrate—indeed, they do not seriously argue—that enforcement of the district court’s prior orders would be “detrimental to the public interest.” Rufo, 502 U.S. a t 384. Certainly they suggest nothing comparable to the circumstances in which this Court determined such a modification would be appropriate in Rufo—i.e., a modification to avoid pretrial release of accused violent felons. Id. a t 384-85. To the contrary, the public interest strongly supports the continuation of this litigation until the state achieves compliance with the EEOA. Petitioners also contend th a t enactment of NCLB was a significant change in law providing grounds for Rule 60(b)(5) relief. See Superintendent’s Br. 51- 61; Legislative Petitioners’ Br. 50-57. For the reasons explained supra, petitioners’ claim tha t a state’s compliance with NCLB satisfies its obligations under EEOA is curtailed by HB 2064’s express violation of NCLB’s requirements regulating use of federal funds. In any event, NCLB does not render impermissible those obligations placed on the state by the EEOA, nor does it make legal the sta te’s continued failure to provide a structure for supporting local school district ELL programs.12 See 12 For the reasons given by respondents, the NCLB sta tu te supplem ents, ra th e r th an replaces, the requirem ents of the EEOA. See S ta te Respondents’ Br. 24-28; Flores Respondents Br. 48-60. 29 Rufo, 502 U.S. at 388. It is instructive tha t the Horne letter and the Title III Guidance affirm that states accepting NCLB funds rem ain subject to EEOA obligations and m ust also satisfy NCLB’s requirem ents.13 NCLB does not, therefore, constitute a significant change in law warranting modification, as contemplated under Rufo. See id. at 388-90. IV. The D istrict Court’s D enial o f Rule 60(b)(5) R elief Was C onsistent w ith P rincip les o f Federalism . Notwithstanding the assertions of petitioners and their amici to the contrary, the district court consistently proceeded in a m anner tha t respected federalism concerns and took the most deferential approach in seeking state compliance with federal law. Cf. Superintendent’s Br. 32, 39-42; Legislative Petitioners’ Br. 34-36; Amici American Legislative Exchange Council, et al. Br. 11-14. Throughout this litigation, the district court reviewed the state’s ELL program structure— including its provisions to assure tha t local districts have the resources necessary to implement Arizona’s preferred instructional models—-under an arbitrary- and-capricious standard. See J.A. 32, 44, 46, 49, 87. This highly deferential standard of review gave the utmost respect to the decision-making autonomy of state officials. See Frew, 540 U.S. a t 442. 13 Moreover, following enactm ent of NCLB, the federal governm ent has continued to pursue aggressively EEOA enforcem ent actions. See U.S. Dep’t of Justice, Educational O pportunities Section, Cases on English Language Learners, available at http://www.usdoj.gov/crt/edo/caselist.php. http://www.usdoj.gov/crt/edo/caselist.php 30 Petitioners and their amici incorrectly malign the decisions of the district court for “mandating dramatic increases in ELL-specific funding,” requiring a “specific amount of earm arked funding,” and “ignoring] the importance of preserving legislative appropriations authority.” See Legislative Petitioners’ Br. 50; Superintendent’s Br. 43; Amici American Legislative Exchange Council, et al. Br. 16. To the contrary, the district court’s orders never commanded the state to provide a specific level of incremental or earm arked funding for ELL students, but required only th a t the state establish a funding level rationally related to the actual costs of EEOA compliance, taking into account resources available to local school systems from other, legally available, sources. See J.A. 44, 87, 88. The district court repeatedly pursued the least restrictive remedy possible: merely setting deadlines and asking the state to achieve compliance by means of its own choosing. The district court’s orders were also sufficiently “flexible” to accommodate significant educational policy changes, including the shift to structured English immersion in Proposition 203. Rufo, 502 U.S. a t 380. The district court recognized that questions of educational policy are within the competence of the political branches, and its role was only to address violations of federal law. Flores, 48 F. Supp. 2d at 949 (“Confronted, reluctantly, with this type of task in this case, this Court will fulfill the responsibility Congress has assigned to it without unduly substituting its educational values and theories for the educational and political decisions reserved to state or local school authorities 31 or the expert knowledge of e d u c a t o r s I n d e e d , even legislative petitioners have acknowledged tha t the district court “left it up to the Legislature to craft a program tha t is not arbitrary and capricious.” J.A. 72. Furthermore, to the extent tha t state actors have not presented a united front on the issue, the district court gave them considerable space to negotiate a means of compliance among themselves. Federal courts are not limited to merely identifying violations of law and “hoping for compliance.” Frew, 540 U.S. a t 440; see also Peacock v. Thomas, 516 U.S. 349, 356 (1996) (“Without jurisdiction to enforce a judgment entered by a federal court, ‘the judicial power would be incomplete and entirely inadequate to the purposes for which it is conferred by the Constitution.’” (quoting Riggs v. Johnson County, 73 U.S. 166, 187 (1867))). Consistent with this Court’s decision in Frew, the district court here moved carefully with deference to the state authorities in term s of the relief it granted. 540 U.S. at 439-40. For example, it explicitly rejected certain post-judgment relief requested by the Flores plaintiffs because it “encroache[d] on a domain th a t primarily belongs to local government institutions, including the State’s legislature.” J.A. 38. Furthermore, the remedial action th a t the district court has consistently sought since 2000 is directly aimed at eliminating the state’s current and ongoing violation of the EEOA, not at implementing the court’s own view of what is an appropriate ELL pedagogy. See Dowell, 498 U.S. a t 247. Although the changes in programmatic models, alternative funding sources, and student 32 performance tha t petitioners emphasize may be relevant factors in the state’s calculation of the appropriate funding level, these changes do not alter the basic fact th a t the state has yet to demonstrate th a t it has established a system for meeting its obligations under the EEOA in an effective, non- arbitrary and rational way. Accordingly, denial of Rule 60(b)(5) relief was proper. CONCLUSION For the foregoing reasons, as well as those outlined by respondents, the decision below should be affirmed. J oshua Civin NAACP Legal Defense & Educational Fund, Inc. 1444 I Street, NW I Q t h Floor Washington, DC 20005 Respectfully submitted, J ohn Payton J acqueline A. Berrien Debo P. Adegbile Anurima Bhargava Counsel of Record Holly A. Thomas Leticia V. Smith-Evans NAACP Legal Defense & Educational Fund, Inc. 99 Hudson Street 16th Floor New York, NY 10013 (212) 965-2200 33 Harper J ean Tobin National Senior Citizens Law Center 1444 Eye Street NW, Suite 1100 Washington, DC 20005 J ane P erkins National Health Law Program 211 N. Columbia Street Chapel Hill, NC 27514 Marianne Engelman Lado New York Lawyers For The Public Interest 151 West 30th Street New York, NY 10001 March 25, 2009