9th Cir.: Ariz. must comply with English ed. judgment

The Ninth Circuit refused to grant the State of Arizona relief from a judgment requiring it to provide adequate education funding for non-native English speakers. Flores v. Arizona, ___ F.3d ___, 2008 WL 484339 (9th Cir. Feb. 22, 2008) (Nos. 07-15603, 07-15605).

 The court held that there had been no changes in the facts or the law sufficient to justify relief without compliance, and that a new state law did not bring Arizona into compliance with the Equal Educational Opportunity Act (EEOA). Specifically, the court held that the No Child Left Behind Act did not alter the requirements or enforceability of the EEOA.

 

                This suit was brought by a group of parents and students fifteen years ago, and the original judgment was in 2000. The district court ruled that the State was in violation of the EEOA, 20 U.S.C. § 1703, which prohibits the denial of equal educational opportunities, including “the failure …to take appropriate action to overcome language barriers that impede equal participation by…students.” Arizona’s school funding structure provides a “base level” of funding for all students, as well as additional funding for various groups, including English language learners (ELL). The district court held that the funding level for ELL education was arbitrary and capricious and showed “no relation to the actual funding needed to ensure that [ELL] students …are achieving mastery of its specified ‘essential skills.’”

 

The State did not appeal the judgment, but in December 2005 the district court held the State in contempt for failure to comply. In response, the legislature passed a new law, HB 2064, which among other things increased the funding level for ELL students – but with a two-year limit, and with local eligibility for funding to be offset by federal funding. Governor Napolitano thought the law was insufficient but allowed it to become law so the matter could return to court. By this time the State and the Board of Education had abandoned their defense of the suit and sided with the plaintiffs, but the defense was now continued by the Superintendent, along with the Speaker of the House and President of the Senate as intervenors. After a lengthy hearing, the district court held that Arizona was still not in compliance and denied relief from judgment.

 

The Ninth Circuit rejected challenges to the Superintendent’s standing to seek relief, noting that he administers the state’s education system, and though not specifically authorized by the Board of Education, he was not opposed by the Board. The court noted that the intervenors did not need standing, and considering their standing was in any event unnecessary.

 

The court concluded that this was not one of the “rare” instances where “a prior judgment is so undermined by later circumstances as to render its continued enforcement inequitable even though neither appealed nor complied with. The court continued: “nor do we think it proper to reward Arizona’s foot-dragging by granting relief from judgment on ground that could have been raised on appeal from the Declaratory Judgment and from earlier injunctive orders but were not.”

 

The Superintendent and intervenors pointed to two main factual changes: improvements in ELL student achievement in the school district that was the focus of the suit, and increased “base level” funding that could be directed to ELL instruction. The court held that the performance data was not sufficient to justify relief from judgment, pointing to the failure of most ELL tenth graders to meet state achievement standards while most native speakers did. The court also stated that it was no more appropriate now than it had been before for “base” funds to be diverted to the incremental costs of ELL instruction, thus “hurting all students in an attempt to equalize opportunities for ELL students.” This “Hobson’s choice,” the court said, had been “necessarily rejected” by the original judgment.

 

The court also considered the contention that the No Child Left Behind Act (NCLB) justified relief, either because compliance with NLCB also constituted compliance with the EEOA, or because NCLB’s district-by-district focus “obviates any need to do a state-wide cost study of ELL program incremental costs.” The court noted the “distinct purposes of the EEOA and NCLB: The first is an equality-based civil rights statute, while the second is a program for overall, gradual school improvement.” The distinct individual and aggregate focus of each statute is complementary. Moreover, construing NCLB so that compliance with its mandates also satisfied EEOA would “produce strange results,” since individual students’ right to sue would “wink in and out of existence based upon the year-to-year vagaries of overall school test scores.” This would be an “effective repeal” of EEOA, something indicated nowhere in NCLB. In fact, NCLB includes an explicit saving clause stating that it does not affect existing civil rights law. 20 U.S.C. § 6847. The court also noted that, while NCLB monitoring protocols might make a district-by-district cost study more pragmatic than a state-wide one, this would only justify a modification of the judgment, not complete relief.

 

The court found its “analysis bolstered by the …similar analysis of a purported conflict between a civil rights statute and a general Spending Clause-based statutory program” in Blessing v. Freestone, 520 U.S. 329 (1997). The Blessing Court held that an action under 42 U.S.C. § 1983 could be displaced only be an express provision in the spending law at issue, or by a comprehensive enforcement scheme. Because the child welfare statute in Blessing had no remedy for individuals, it could not preclude a § 1983 suit. By the same token, the Ninth Circuit concluded that NCLB, which provides no private remedy, could not preclude suits brought under the EEOA (which has an express right of action).

 

Finally, the court considered whether HB 2064 brought Arizona into compliance. The court held that it did not, because: (1) the law’s two-year cutoff for additional ELL funds was arbitrary, since students’ needs should not “invariably vanish” at the end of two years; (2) the increase in ELL funding was itself insufficient; (3) grant programs in the law that might have made up the insufficiency themselves had no guaranteed funding from the State; and (4) those grant programs violate several provisions of federal law, for instance, by taking federal funding into account in determining eligibility for state aid. The court noted that HB 2064 might actually negate the modest progress to date, due to its abrupt cutoff of all funding for day-to-day ELL instruction, and the risk of a federal enforcement action created by provisions that conflict with federal law.

 

The court affirmed the denial of relief from judgment, but observed that the State “may be nearing compliance,” if it fixes the flaws in HB 2064.