Flores v. Arizona

• Decision Date: 22 February 2008
• Docket Number: No. 07-15603.,No. 07-15605.,07-15603.,07-15605.
• Citation: 516 F.3d 1140
• Parties: Miriam FLORES, individually and as a parent of Miriam Flores, minor child; Rosa Rzeslawski, individually and as a parent of Mario Rzeslawski, minor child, Plaintiffs-Appellees, v. State of ARIZONA and the Arizona State Board of Education, and its individual members in their official capacities, Defendants-Appellees, Thomas C. Horne, Superintendent of Public Instruction, Defendant-Appellant, and Speaker of the Arizona House of Representatives and President of the Arizona Senate, Intervenors. Miriam Flores, individually and as a parent of Miriam Flores, minor child; Rosa Rzeslawski, individually and as a parent of Mario Rzeslawski, minor child, Plaintiffs-Appellees, v. Speaker of the Arizona House of Representatives and President of the Arizona Senate, Intervenors-Appellants, and State of Arizona and the Arizona State Board of Education, and its individual members in their official capacities, Thomas C. Home, Superintendent of Public Instruction, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

516 F.3d 1140

Miriam FLORES, individually and as a parent of Miriam Flores, minor child; Rosa Rzeslawski, individually and as a parent of Mario Rzeslawski, minor child, Plaintiffs-Appellees, v. State of ARIZONA and the Arizona State Board of Education, and its individual members in their official capacities, Defendants-Appellees, Thomas C. Horne, Superintendent of Public Instruction, Defendant-Appellant, and Speaker of the Arizona House of Representatives and President of the Arizona Senate, Intervenors.

Miriam Flores, individually and as a parent of Miriam Flores, minor child; Rosa Rzeslawski, individually and as a parent of Mario Rzeslawski, minor child, Plaintiffs-Appellees, v. Speaker of the Arizona House of Representatives and President of the Arizona Senate, Intervenors-Appellants, and State of Arizona and the Arizona State Board of Education, and its individual members in their official capacities, Thomas C. Home, Superintendent of Public Instruction, Defendants.

No. 07-15603.

No. 07-15605.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted 4, 2007.

Filed February 22, 2008.

David J. Cantelme (argued) and D. Aaron Brown, of Cantelme & Brown, P.L.C.,

for Intervenors-Appellants Speaker of the Arizona House of Representatives and President of the Arizona Senate.

Eric J. Bistrow (argued), of Burch & Cracchiolo, P.A., for Defendant-Appellant Thomas C. Horne, Superintendent of Public Instruction of the State of Arizona.

Timothy M. Hogan (argued) and Joy E. Herr-Cardillo, of the Arizona Center for Law in the Public Interest, for Plaintiffs-Appellees Miriam Flores et al.

José A. Cáardenas (argued), Lynne C. Adams, David D. Garner, and Kimberly A. Demarchi, of Lewis & Roca LLP, and Terry Goddard, Attorney General of the State of Arizona, Mary O'Grady, Solicitor General of the State of Arizona, and Susan P. Segal, Assistant Attorney General of the State of Arizona, for Defendants-Appellees State of Arizona and Arizona State Board of Education.

John C. Richardson and Shefali Milczarek-Desai, of DeConcini McDonald Yetwin & Lacy, P.C., for amicus curiae Arizona School Boards Association, Tucson Unified School District, Mesa Unified School District, Sunnyside Unified School District, and Phoenix Union High School District:

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. Nos. CV-92-00596-RCC, CV-92-00596-RCC.

Before: B. FLETCHER, BERZON, and RAWLINSON, Circuit Judges.

BERZON, Circuit Judge:

On January 24, 2000, the District Court for the District of Arizona ruled that Arizona was violating the Equal Educational Opportunity Act of 1974, 20 U.S.C. §§ 1701 et seq. ("EEOA"), because the state's funding for English language instruction for non-native speakers was "not reasonably calculated to effectively implement the ... educational theory which" the state had approved. Flores v. Arizona, 172 F.Supp.2d 1225, 1239 ("Flores II") (D.Ariz.2000). Eight years later, Arizona has still not satisfied the terms of that judgment, nor complied with the bulk of the injunctions entered against it as a result of that ruling. Although Arizona and the Arizona Board of Education acknowledge that the state remains out of compliance and do not seek to vacate the judgment or the injunctive orders, the Arizona Superintendent of Public Instruction, the Speaker of the Arizona House of Representatives, and the President of the Arizona Senate moved for relief from judgment.¹ We affirm the district court's denial of relief.

I. BACKGROUND

It has been more than fifteen years since the initial complaint in this action was filed and eight years since the final judgment on liability issued. The postjudgment relief process has been arduous, with Arizona moving forward, to the considerable degree it has, largely in response to a consent decree resulting from this litigation and a series of post-judgment relief orders. Over this long period, local and national conditions have shifted in significant ways. The moving parties contend they have done so sufficiently as to warrant relief from judgment, even though Arizona has never complied with the specific terms of the present injunction against it. Explaining why that argument fails requires rehearsing the history of this case. We do so here, beginning with the complaint and Declaratory Judgment, moving through the intermediate postjudgment orders, and then discussing in detail the proceedings leading up to this case, which were triggered by a new state funding statute and resulted in an eightday evidentiary hearing.

A. The EEOA and the Complaint

Nogales is a small city along the Mexican border in southern Arizona. In 1992, when this suit began, the population of the Nogales Unified School District ("NUSD") was almost entirely Hispanic; that is still so. Most of its approximately 6,000 students come from homes where Spanish is the first language. These students are distributed among six elementary schools, two middle schools, one high school, and one alternative high school. The great majority of the district's students are classified as English language learners ("ELL") for at least some portion of their academic careers. In 2006, for instance, thirty percent of the students were in ELL programs and an additional sixty percent had been in such programs. Although Arizona's theory of ELL instruction has changed over the years, the enormous importance of such programs to students and parents in Nogales has not. ELL students and parents in Nogales (we refer to them as "Flores," after class representative Miriam Flores), were faced with serious inadequacies in ELL instruction and sued to correct them. The suit proceeded as a class action, with the class defined as "all minority `at risk' and limited English proficient children now or hereafter, enrolled in Nogales Unified School District ..., as well as their parents and guardians."

Flores' second amended complaint, filed November 29, 1996, primarily alleged that the "State has failed to provide financial and other resources necessary for adequate implementation of mandatory [ELL] programs by public school districts in Arizona," because "[t]he cost of [ELL] instruction complying with federally prescribed state mandates far exceeds the only financial assistance the State theoretically provides school districts for such purposes." As a result, Flores contended, Arizona, the state Superintendent, and the state Board of Education violated the EEOA.

The relevant portion of the EEOA provides:

No State shall deny equal educational opportunity to an individual on account of his or her race, color, sex, or national origin, by—

... (f) the failure by an educational agency to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.

20 U.S.C. § 1703. This provision of the EEOA was intended to remedy the linguistic discrimination identified by Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.E d.2d 1 (1974), in which the Supreme Court held that failing to provide for the needs of non-English speaking students "is to make a mockery of public education," rendering classroom experiences for these children "wholly incomprehensible and in no way meaningful." Id. at 566, 94 S.Ct. 786; see also Castaneda v. Pickard, 648 F.2d 989, 1008 (5th Cir.1981) (noting that the EEOA codifies the "essential holding of Lau, i.e., that schools are not free to ignore the need of limited English speaking children for language assistance to enable them to participate in the instruction al program of the district.").²

Flores alleged that such needs were not being met in Arizona. She charged Arizona with "administer[ing] a school finance scheme that is just sufficient to let less distressed, predominantly Anglo districts impart State-mandated essential skills to their mainstream student bodies ... but that does not and will not enable NUSD or similarly situated districts to impart the same State-mandated essential skills to decisively minority enrollments requiring expanded compensatory programs, smaller class sizes and further efforts of like nature in order to acquire them."

Flores' complaint was premised on the EEOA analytic framework provided by the Fifth Circuit in Castaneda. See 648 F.2d at 1009-10; see also Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1041-42 (7th Cir.1987) (applying the Castaneda analysis). The Castaneda framework is three-fold: First, courts must be satisfied that the "school system is purs[uing] a program informed by an educational theory recognized as sound by some experts in the field or, at least, deemed a legitimate experimental strategy." Castaneda, 648 F.2d at 1009. Second, "the programs and practices actually used by a school system [must be] reasonably calculated to implement effectively the educational theory adopted by the school." Id. at 1010. There must, in other words, be sufficient "practices, resources and personnel ... to transform the theory into reality." Id. Third, even if theory is sound and resources are adequate, the program must be borne out by practical results. Id. Flores alleged, consistent with Castaneda step two, that Arizona had "failed to provide financial and other resources necessary for adequate implementation" of its ELL programs.

B. The Declaratory Judgment and Arizona's School Funding System

After lengthy pre-trial proceedings and a bench trial, the district court on January 24, 2000, held that Arizona was in violation of the EEOA and granted declaratory judgment in Flores' favor.³ See Flores II, 172 F.Supp.2d at 1239. Of the many issues raised in Flores' complaint, only one EEOA issue was decided by the court: "[W]hether or not Defendants' [sic] adequately fund and oversee the Lau program in NUSD...."⁴ Id. at 1226. The rest of the EEOA violations originally alleged, including failures adequately to evaluate and monitor ELL students, to...