Lea v. Cone Mills Corporation Joint Appendix

    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