The Court Versus Consent Decrees? Schools,Horne v. Flores and Judicial Strategies of Institutional Reform Litigation

The Case of Horne v. Flores

The background of the case of Horne v. Flores may date back at least to March 16, 1972, when President Richard Nixon proposed a new law that would “establish an educational bill of rights for [those] who start their education under language handicaps, to make certain that they, too, will have equal opportunity” (President Nixon, Address to the Nation on Equal Educational Opportunities and School Busing, 1972 Pub. Papers 425, March 16, 1972). Stating that “school authorities must take appropriate action to overcome whatever language barriers might exist, “President Nixon clearly intended that English Language-Learner (ELL) students be included as part of this new legislation, as part of a premise that educational opportunities for all schoolchildren must be ‘equal’ as well as ‘adequate’” (President Nixon, Special Message to Congress on Equal Educational Opportunities and School Busing, 118 Cong. Rec. 8931, March 17, 1972). Congress began work on the new legislation, with one of the aims to eliminate language barriers for ELL students.

As a result of these efforts, in 1974 the Equal Educational Opportunities Act (EEOA) was passed by Congress. This legislation prohibits a state from denying equal education opportunity to any person “on account of his or her race, color, sex, or national origin.” The denial of equal educational opportunity includes the failure by an education agency to “take appropriate steps to overcome language barriers that impede equal participation by its students in its instructional programs” (20 U.S.C. 1703 (f)). The specific effect on ELL students was not clarified, and was subject to judicial interpretation.

In the 1974 case of Lau v. Nichols, 414 U.S. 563 (1974), the U.S. Supreme Court clarified the effects of EEOA, holding that failing to provide English language instruction to non-English-speaking students denies those students a meaningful opportunity to participate in a State’s educational program, and was a violation of regulations issued under Title VI of the Civil rights Act of 1964. The court further stated that “Basic English skills are at the very core of what these public schools teach . . . We know that those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.” (Lau v. Nichols, p. 569). Having specified the need for English language instruction to non-English-speaking students, the next step was to clarify what steps were needed under the requirements of the EEOA, which required that states take “appropriate steps” to overcome these language barriers. As neither the text of EEOA nor its legislative history defined these terms, it was left to the courts to provide guidance on the “appropriate steps” and actions that states must maintain to satisfy the legislative mandate.

This guidance was forthcoming in the case of Castaneda v. Pickard, 648 F. 2d 989 (1981). In Castaneda, the Court of Appeals for the Fifth Circuit specified a three-pronged test that determined if states had taken appropriate action. First, the state school system was required to prove that it had pursued a program (to provide English-language instruction) that was informed by a sound educational theory. Second, the state must prove that the program was “reasonably calculated to implement effectively the educational theory adopted by the school” by providing the “practices, resources and personnel necessary to transform the theory into reality.” And third, the states must prove that the program had been successful (in educating ELL students) after a legitimate trial period (Castandeda v. Pickard, pp. 1009-1010).

This test was subsequently affirmed by the lower courts, which adopted this framework to assess claims based on the EEOC (e.g., Gomez v. Illinois State Board of Education, 811 F.2d 1030 [7th Circuit 1987]; Keyes v. School Dist. No. 1, 576 F. Supp. 1503 (D. Colo. 1983)). Although not eliminating entirely the ambiguity of the language and directives of the EEOA, it did provide guidance for school districts in determining mandates for instruction to non-English-speaking students. Although each of the three prongs was open to judicial interpretation, Castaneda at least provided a framework for assessing instructional programs.

The issue of programs for non-English-speaking students was further complicated by passage of the No Child Left Behind Act (NCLB) in 2001. This legislative act reflected Congress’ judgment that the best way to raise the level of education nationwide is by granting state and local officials flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. Under this approach, states receiving federal funds must define performance standards and make regular assessments of progress toward the attainment of those standards (20 U.S.C. 631 (b) (2)). With respect to ELL students, Title III of NCLB (the English Language Acquisition, Language Enhancement, and Academic Achievement Act) requires that states ensure that ELL students “attain English proficiency, develop high levels of academic attainment in English, and meet the same challenging State academic content and student academic achievement standards as all children are expected to meet” (Section 6812 (1)). The Act further requires states to set annual achievement goals for the number of students who will attain proficiency, mandates adequate yearly progress with respect to academic achievement, and holds local schools and agencies accountable for meeting these objectives (Section 6842 (b)).

Since NCLB, the courts have struggled with the question of whether NCLB “supplants” the requirements of EEOA or merely “supplements” it. With respect to ELL students, some authorities have argued that NCLB provides the substantive requirements for meeting the EEOA guidelines, and that compliance with NCLB fulfills all the necessary legal obligations. Others have argued that NCLB merely supplements the requirements of EEOA but does not fully satisfy them, especially as NCLB is focused on testing standards and is not meant to provide meaningful criteria for educational standards. The federal courts, while not fully addressing the issue, have suggested that NCLB “supplements but does not supplant” the requirements of EEOA, but has left the question undefined.

Based on the requirements of the EEOA (and subsequently NCLB), several states including Arizona and California have filed suit on behalf of ELL students, arguing that current educational programs and funding systems have not met the requirements set by statute. Some states have focused on funding levels, whereas others have focused on the lack of adequate educational theories, planning, goals, and resources. Seeking injunctive relief, these states have sought to impose institutional reform by requiring states (through injunctions that have lasted more than a decade) to dramatically increase funding levels for ELL students, and imposing fines on states that fail to maintain a certain level of financial and administrative support. Some states have resisted these injunctions, filing Rule 60 (b) (5) motions under the Federal Rules of Civil Procedure, which allow parties to seek relief from a injunction or order if “a significant change in factual conditions or law” renders continued enforcement “detrimental to the public interest” (Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 384 [1992]). These cases have led directly to the controversy of Horne v. Flores, and raise pivotal issues on the questions of injunctive relief, institutional reform litigation, and the requirements of the states pertaining to ELL students and the EEOA and NCLB.

The Dispute in Horne v. Flores

The case of Horne v. Flores began in 1992, when ELL students and their parents in the Nogales Unified School District of Arizona filed a lawsuit in federal court against the state, the members of the state board of education, and the state superintendent of public instruction. Nogales is a small city along the Mexican border with Arizona where a majority of its students speak Spanish as the primary language. The plaintiffs argued that the defendants had violated the EEOA, which requires a State to “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” The plaintiffs sought a declaration that the State had “systematically . . . failed or refused to provide fiscal as well as other resources sufficient” to enable the Nogales School District to “establish and maintain” successful programs for English learners (172 F. Supp. 2nd 1225, 1226 [2000]).

In January 2000, the federal district court found in plaintiff’s favor. The court included factual findings on the additional costs per child associated with ELL students, and concluded that the state’s method of paying for these additional costs for ELL education were “arbitrary and capricious and [bore] no relation to the actual funding needed” (172 F. Supp. 2nd 1239). The federal district court cited the case of Castaneda v. Pickard, concluding that the state had failed the second prong of the test imposed by Castenada by failing to provide the “practices, resources and personnel” necessary to transform the ELL program into reality.

In October 2000, the district court ordered the state of Arizona to prepare a “cost study” [to establish the proper appropriation of funding to effectively implement ELL programs], and required the State to develop a funding mechanism that would bear a "rational relation to the actual funding needed” (160 F. Supp. 2nd 1043, 1045, 1047). In June 2001, the district court expanded the declaratory judgment from Nogales district to all the school districts of Arizona, and again ordered Arizona to increase funding for each ELL students to a level that “shall not be arbitrary and capricious, but shall bear a rational relationship to the actual funding needed to implement language acquisition programs.”

The state of Arizona subsequently made some efforts to increase funding and implement a plan for ELL students, but these plans were hindered by legislative inaction and political paralysis. In January 2005, the plaintiffs again took the state of Arizona back to court, and the district court imposed a 90-day timeline on the state to meet its legal requirements. When the state failed to meet the timeline, the district court found the state in contempt and imposed a fine of US$500,000 per day, escalating over time to US$2 million per day until the state sufficiently increased its ELL funding.

Meanwhile, in 2001, the NCLB was passed by Congress, which provided federal funds for ELL students. More importantly, in March 2006, after accruing over a million dollars in fines, the state of Arizona passed HB 2064, which was designed to implement a permanent funding solution to the ELL dilemma. Specifically, HB 2064 imposed programming and structural reforms in education, including increased ELL funding as well as a compensatory instruction fund for ELL students, with a 2-year per-student limit on such funding. In addition, a structured English immersion program was implemented, with additional funding for this program designed specifically for ELL students. On the basis of these changes, the leaders of the Arizona legislature filed a motion seeking relief from the district court’s original order under the Federal Rules of Civil Procedure 60 (b). Arguing that these “changed circumstances” had created a “significant change in factual conditions” which made the original order unnecessary, the legislature petitioned the court for relief from its original order (and its injunctions and fines).

In April 2006, the district court denied petitioners’ motion, concluding that HB 2064 was flawed, for its increased funding was not “rationally related” to effective ELL funding, its 2-year funding limit per ELL student was irrational, and the bill itself violated federal law by using federal funds to “supplant” rather than “supplement” state funds (No. CV-92-596-TUC-RCC, pp. 4-8 [April 25, 2006], App. to Pet. For Cert. in No. 08-294, pp. 176a, 181a-182a). This ruling was appealed to the Ninth Circuit Court of Appeals, which affirmed the district court’s ruling. The appellate court acknowledged that the state of Arizona had made “significant strides since 2000,” but still had not done enough to warrant Rule 60 (b) relief. First, the circuit court stated that NCLB and HB 2064 by itself were not sufficient evidence of “changed circumstances” to warrant relief. The court also stated that the original order focused on the adequacy of ELL funding, and the state had not sufficiently shown that there was a plan or “resources” to adequately fund ELL education, implying that a certain level of funding was required to lift the injunction. Finally, the court stated that injunctive relief would only be appropriate if petitioners had shown “either that there are no longer incremental costs associated with ELL programs in Arizona” or that the state had altered its funding model, and that neither had been demonstrated (516 F. 3rd. 1140, 1169).

The petitioners were subsequently joined by the superintendent of the Nogales Unified School District, and an appeal was made to the U.S. Supreme Court. After submission of briefs and oral arguments in 2008, the Supreme Court announced its decision in June 2009. With so many important issues at stake, this decision was widely anticipated, and both the majority and minority decisions have been closely analyzed.

Supreme Court Opinions in Horne v. Flores

Justice Alito wrote the majority opinion, joined by Justices Roberts, Scalia, Kennedy, and Thomas. The majority argued that the lower courts (the district court and the Ninth Circuit Court of Appeals) had made two fundamental errors. The first was a “misperception” of the nature of the obligation imposed by the EEOA. The majority stated that the EEOA only requires states to take “appropriate steps” to overcome language barriers that impede equal participation on the part of students. This “appropriate action” standard is a flexible standard, which takes into account changes in circumstances, new methodologies, new resources of revenue, structural and management reforms, and other factors. The lower courts, the majority ruled, had focused almost exclusively on the ELL funding levels to the exclusion of these other factors, hence violating the spirit and design of the EEOA (Horne v. Flores, 2009, Majority Opinion, p. 14).

Second, the majority ruled that the lower courts had misapplied Rule 60 (b) (5) of the Federal Rules of Civil Procedure. The majority noted that Rule 60 (b) (5) motions had become common in “institutional reform litigation,” and were used by parties to modify or vacate a judgment or order if a “significant change in factual condition or in law” rendered continued enforcement “detrimental to the public interest.” Noting that injunctions in such cases typically “remain in force for many years,” the court stated that institutional reform injunctions raise sensitive federalism concerns, notably having the effect of “dictating state or local budget priorities” at a time when “states and local governments have limited funds.” Under these circumstances, it is important to ensure that responsibility “for discharging the State’s obligations is returned promptly to the State and its officials” (Horne v. Flores, 2009, pp. 10-13). In this case, the majority ruled that “rather than applying a flexible standard that seeks to return control to state and local officials as soon as a violation of federal law has been remedied, the Court of Appeals used a heightened standard that paid insufficient attention to federalism concerns” (Horne v. Flores, 2009, Majority Opinion, p. 14).

The court remanded the case back to the lower courts for a factual determination of four issues. First, the court noted that the Arizona voters had approved a new “structured English immersion” (SEI) program in 2000 that had proved to be very effective. The majority ruled that “a proper analysis of petitioners’ Rule 60 (b) (5) motion should include further factual findings regarding whether Nogales’ implementation of SEI methodology—completed in all of its schools by 2005—constitute a ‘significantly changed circumstance’ that warrants relief.” Second, the court ruled that the funding and policy changes attendant to the implementation of the NCLB should be studied to determine if that constituted another “changed circumstance” dictating relief. The court noted that compliance with NCLB by itself may not be sufficient, but that it was “probative” in four principal ways, primarily in marking shifts in policy, funding and programming for ELL students. Third, the majority directed the lower courts to examine the structural and management reforms in Nogales, since these also may constitute another “relevant” change in circumstances. The court noted that the Nogales school district had, since implementation of the original court order, “significantly” reduced class sizes, improved teacher quality, improved student/teacher ratios, “pioneered” a system of textbook and curriculum planning and “eliminated” the problem of a severe shortage of instructional materials. Fourth, the majority mandated a closer examination of the sources of funding for ELL students, noting that funding in five major areas had increased, including the State’s “base level” funding, ELL “incremental” funding, federal grants, regular district and county taxes, and special voter-approved district and county taxes. The majority concluded that such an analysis of these four factors “may establish that Nogales is no longer in violation of the EEOA” and is taking “appropriate action to remove language barriers” and, “if this is the case, continued enforcement of the District Court’s original order is inequitable within the meaning of Rule 60 (b) (5)” (Horne v. Flores, 2009, Majority Opinion, pp. 23-34).

Finally, the court turned to the question of whether or not it was appropriate for the trial court to extend the original court order from Nogales to the entire state of Arizona in 2001. The majority ruled that the district court “should vacate the injunction insofar as it extends beyond Nogales unless the court concludes that Arizona is violating the EEOA on a statewide basis.” The majority noted that Nogales is only one of 239 school districts, comprising only one half of 1% of the state’s students, and that “the record contains no factual findings or evidence that any school district other than Nogales failed (much less continues to fail) to provide equal educational opportunities to ELL students” (Horne v. Flores, 2009, Majority Opinion, pp. 34-35).

Writing for the dissent, Justice Breyer wrote the minority opinion, and was joined by Justices Souter, Stevens, and Ginsburg. The dissent argued that the majority made three errors. First, the majority erred in ruling that the lower courts violated the spirit and design of the EEOA by focusing on ELL funding levels to the “exclusion” of other factors. The minority argued that the lower courts did “consider” other factors, and made factual findings on “all” the matters raised by petitioners. The minority conceded that the lower courts did “focus” on ELL funding levels, but argued that this was appropriate, as “incremental funding costs” were the “basic contested issue at the 2000 trial and the sole basis for the District Court’s finding of a statutory violation.” Furthermore, the need for “resources” and extra costs associated with ELL funding “lies at the heart of the statutory demand for equal protection opportunity.” Arguing that the need for funding is “one and the same” with the need to take “appropriate steps” under the EEOA, the minority concluded that the lower courts had no choice but to focus on the appropriate funding levels as mandated by the EEOA (Horne v. Flores, 2009, Dissenting Opinion, p. 13).

Second, the dissent argued that the majority decision sets up new standards for institutional reform cases under Rule 60 (b) (5) that are without foundation. The minority argued that the majority ignored longstanding principles pertaining to Rule 60 (b) (5) motions, including the principle that the party seeking relief from a judgment or order “bears the burden of establishing that a significant change in circumstances warrants that relief,” and that courts normally set an unsatisfied judgment “entirely aside” only if the petitioner “shows that the decree has served its purpose, and there is no longer any need for the injunction.” Furthermore, the majority ignored the

well-established principle” that the petitioner, to have a decree set aside under Rule 60 (b) (5), must show “both (1) that the decree’s objects have been ‘attained. . .’ and (2) that it is unlikely, in the absence of the decree, that the unlawful acts it prohibited will again occur.

The minority contended that the majority’s decision to ignore these principles effectively sets up new standards for Rule 60 (b) (5) motions, and inquired, “Does the Court intend to ignore one of more of these standards or to apply them differently in cases involving what it calls ‘institutional reform litigation?’” (Horne v. Flores, 2009, Dissenting Opinion, pp. 24, 16-25).

Third, the minority took issue with the majority’s decision to remand the case to the lower courts for a factual determination of four issues. (Horne v. Flores, 2009, Dissenting Opinion, pp. 27-39). The minority argued that factual determinations had already been made in the lower courts on three of these issues, and the fourth issue was never raised by the petitioners. In particular, the district court had already spent “two days” of an “eight days evidentiary hearing” on the issue of the change of methodology from “bilingual education” to a structured English immersion program. The dissent agreed that the lower courts did not take into account the effect of passage of the NCLB, but concluded that the “simple reason” was that “no one . . . has ever argued that that District Court should take account of any such change.” Furthermore, the dissent argued that the lower courts had heard “extensive evidence” on the structural and management reforms in Nogales, and that the issue of the various levels of funding (as well as funding increases) had been examined and reviewed “fully.” Finally, the dissent called into question the reasoning, factual determinations, and review of the lower court record, at one point stating that the majority’s arguments have “sprung full grown from the Court’s own brow, like Athena from the brow of Zeus” (Horne v. Flores, 2009, Dissenting Opinion, p. 27).

Judicial Strategy Within Institutional Reform Litigation

From this casenote analysis of Horne v. Flores, what now justifies the judicial intrusion of institutional reform litigation in the schools? What justifies constitutional judicial review and judicial oversight of the management of institution-wide change? Our interest in these applications of Horne v. Flores seems part of a recent revival of interest with the publication by Malcolm Feeley and Edward Rubin, Federalism: Political Identity and Tragic Compromise (2008). This section explores the variety of judicial strategies within institutional reform litigation, including the deferrer, the director, the broker, and the catalyst. From the jurisprudential literature on institutional reform litigation in general, a set of classifications of theoretical justifications emerged, including the following: The deferrer, the director, the broker, and the catalyst. Our casenote analysis of Horne v. Flores and jurisprudential analysis suggests that, for the contemporary U.S. Supreme Court, the catalyst judicial role is ascendant among these approaches and should lead to discussion of the implications for the future of institutional reform litigation in the schools.

The judicial strategies of institutional reform litigation are culled from the literature, especially from the comprehensive analyses of Feeley and Rubin (2000, 2008), as well as the insights of Susan Sturm (1990; Gadlin & Sturm, 2007; Scott & Sturm, 2007). These classification of judicial strategies of institutional reform litigation are based on the numerous case studies of a wide variety of institutional reform litigation contexts, such as prisons, public housing, mental institutions, nursing homes, and schools (e.g., Chilton, 1991; Cooper, 1988; DiIluio, 1990; Diver, 1979; Eisenberg & Yeazell, 1980; Feeley & Rubin, 2000, 2008; Horowitz, 1977; Sandler & Ross, 2003; Taylor, 1993; Yarbrough, 1981) and the typology of judicial strategies by Susan Sturm (e.g., Gadlin & Sturm, 2007; Scott & Sturm, 2007). The judicial strategies of institutional reform litigation that emerge from this literature include the deferrer, the director, the broker, and the catalyst.

Analyses and Conclusions

Our casenote analysis of Horne v. Flores and jurisprudential analysis suggests that, for the contemporary U.S. Supreme Court, the catalyst judicial strategy seems ascendant among these approaches and should lead to discussion of the implications for the future of institutional reform litigation—especially in school consent decrees. For all the criticisms of the contemporary U.S. Supreme Court, the majority and dissenting opinions in Horne v. Flores (2009) point to this republican, “hands-off” catalytic strategy of judicial intrusion in school-institutional reform litigation. The court embraces the role of the judge as catalyst, and eschews the control and court-centered management of institutional reform found in the director judicial strategy. But neither does the court wholly embrace a passive, vision-less judicial role. The court seeks a judicial role with a vision for the ends of a constitutional school, language program, or institution. But in Horne v. Flores (2009), the court expresses the need for a catalytic approach in which the judge brings together and causes the litigants to work out this constitutional needs and institutional change in a real-politik world. The only way for the litigants to buy-in and make the reforms their own, workable, and long-term, is for this catalytic working of the courts. This is not the end of the role of the judiciary within institutional reform litigation, but rather a changing judicial role from lessons learned of what worked in the past.

The implications of the casenote and jurisprudential analysis are important, but are not as severe in undermining the role of the judiciary as the minority in Horne v. Flores (2009) would lead us to believe. The majority did not challenge the essence of school-institutional reform litigation or the nature of Rule 60 (b) (5) cases. It should be noted that the majority merely remanded the case to the lower courts for more factual determinations. The case, however, does signify an important change in tone for future cases that fall under the heading of institutional reform in general. The case clearly indicates that cases of this nature will fall under stricter scrutiny by the Supreme Court. The court was impressed by the nature of the efforts that the state of Arizona had made to remedy the original court order, including its efforts to increase funding, the structural and management changes, and the inclusion of the English immersion program as part of its curriculum. This implies that the Supreme Court will be much more willing to grant relief where states have made good faith efforts to comply with the original court order, even if the reforms have not resolved the underlying funding problems inherent to the controversy. The references to NCLB also seem to indicate that this could be a significant factor in the state’s petition for relief. At the very least, the implications of NCLB have to be examined on a statewide level to determine if they have had a significant effect. Finally, the Supreme Court is reluctant to extend relief to all the districts of the state short of a specific factual finding that the other districts are in noncompliance. This may perhaps be the most important factor for school-institutional reform cases, as it will be significantly more difficult to find the entire state in noncompliance without extensive factual findings to that effect.

Furthermore, the casenote of Horne v. Flores (2009) indicates that “heightened” federalism concerns will play a significant impact in deciding institutional reform litigation (see also, Feeley & Rubin, 2008). As the court stated, once a “durable remedy” was arrived at, it was imperative to discharge the injunction, and return the issue to the states where it more properly resides. The court noted several times that the issue of ELL education was primarily a state “responsibility,” and that if a federal consent decree is “not limited to reasonable and necessary implementations of federal law,” then it may “improperly deprive future [state] officials of their designated legislative and executive powers.” In this case, the injunction (along with fines) was in effect for almost a decade, a period the court felt was unnecessarily long, especially as it had the effect of “dictating state and local priorities” (Horne v. Flores, 2009, Majority Opinion, p. 11).

Finally, the court in Horne v. Flores (2009) clearly stated that more flexibility has to be used in implementing Rule 60 (b) (5) cases. The main thrust of the majority’s argument was that the lower courts had focused too narrowly on funding levels to the detriment of other factors, such as changes in programs and structural reforms. The court strongly hinted that the states were free to be more creative in meeting court injunctions under EEOA, even if the reforms came with a limited increase in funding. For example, the majority was clearly impressed with the results of the English immersion program, even though it was accomplished without a major infusion of new financial resources. The majority, in oral arguments and again in their decision, emphasized that “states and local governments have limited funds,” and “when a federal court orders that money be appropriated for one program, the effect is often to take funds away from other important programs” (Horne v. Flores, 2009, Majority Opinion, p. 11). As a result, the court seems to be signaling that it has an appreciation for the current financial problems existent in the states, and will allow solutions that are creative, state directed, and cost effective in achieving EEOA compliance. This by itself is a major change in policy and law, as it implies a degree of sensitivity to local and historical conditions that the Supreme Court has not always shown. Whether this becomes evident in other cases, including those pertaining to federalism and budgetary issues, is unclear, and may be contingent on whether the current crisis in state school finances continues.