Justices Weigh Arizona ELL Case

By Mark Walsh — April 20, 2009 4 min read
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The U.S. Supreme Court appeared sharply divided today over a case that asks whether the state of Arizona is doing enough to educate English-language learners to satisfy a federal civil rights law.

Kenneth W. Starr, the lawyer representing Republican state legislative leaders who are seeking relief from a federal court order that effectively is forcing the state to spend more on ELL programs, told the justices that English learners “are, in fact, making progress” under the program funded by the legislature.

This drew a sharp response from Justice Stephen G. Breyer, who cited detailed test results showing that English learners in the Nogales, Ariz., school district, where the class action began in 1992, still lagged their peers around the state.

“You are right,” Breyer said to Starr during the oral arguments in Horne v. Flores (Case No. 08-289). “They have made progress, but they aren’t quite home yet.”

“But not home yet, your honor, is in fact the key question. What is home?” replied Starr, a former U.S. solicitor general and independent counsel who is now the dean of Pepperdine University law school and a regular advocate before the high court.

Starr argued on behalf of the state lawmakers, as well as Arizona’s superintendent of public instruction, Tom Horne, that a federal district judge went too far in ordering the state to spend more money on ELL programs to satisfy a 1974 federal law known as the Equal Educational Opportunities Act.

“Under the EEOA, all that is required is ... good faith efforts towards compliance,” Starr said.

But Justice David H. Souter reminded Starr that the lower courts had found two problems with Arizona’s ELL program as adopted under a 2006 state law. One was that the law effectively supplanted certain federal funds at the school district level, instead of supplementing them. And the other was that the law cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

“There was no denial that some good faith efforts had been made,” Justice Souter said. “The finding was that there were two deficiencies.”

Justice Ruth Bader Ginsburg also was skeptical of Starr’s arguments. She noted that for several years Arizona did not appeal any of the federal district judge’s orders in the class action.

“What wasn’t appealed was that Arizona was required by federal law to determine the cost and adequately fund a statewide system of English-acquisition programming,” she told Starr.

But when Sri Srinivasan, the lawyer representing the immigrant families who brought the class action, took to the lectern, some of the court’s more conservative justices had sharp questions for him.

“Why shouldn’t the courts decide that what constitutes a good-faith effort [under the EEOA] is pretty much what Congress thought was necessary in the No Child Left Behind Act, and if you comply with that, you’re doing okay?” Justice Scalia said, echoing a point made by the legislative leaders and Horne that federal approval of the state’s ELL program under NCLB should be sufficient to satisfy the civil-rights law.

Chief Justice John G. Roberts Jr. questioned whether federal judges could order a state to increase funding for ELL programs even if faced budgetary constraints.

May a district court say, he asked, “You’ve got to spend this much money on this program, and I don’t care what it means for jails, roads, anything else, when there are profound changes in economic circumstances of the sort everyone’s experiencing lately?”

“The state would have to make the argument that funding constraints are in existence in a way that doesn’t allow us to put together an optimal program, and so here’s the program we want to put in place,” Srinivasan said.

Justice Anthony M. Kennedy appeared to search for a middle ground, perhaps under which the Supreme Court might narrow the remedy to require the state to spend more on ELL programs in Nogales.

One area the justices touched on, but never let dominate the arguments, is the intense political infighting the case has sparked in Arizona.

For several years, then Gov. Janet Napolitano, a Democrat who is now U.S. secretary of homeland security, joined Democratic Attorney General Terry Goddard in supporting the families’ efforts to get more ELL funding.

But new Gov. Janice K. Brewer, a Republican, last month sought to have Goddard file a brief on the side of the legislative leaders and the state superintendent. The attorney general refused.

“I fear politics may be at play,” Gov. Brewer said in a letter last month criticizing his refusal to accept her “direction.”

Starr alluded to the infighting, saying there was “a division of opinion within the state.”

“There is now a very different perspective,” Starr said.

“Doesn’t the attorney general speak for the state?” Justice Souter said.

“No, your honor, not in Arizona,” Starr said. “The attorney general speaks for the state when the governor directs him or her to do that.”

But the justices seemed little interested in refereeing that fight when they have a complicated enough case before them.

(My preview of the case appeared in the blog here, and Education Week’s Mary Ann Zehr reported here on her visit to Nogales.)

A version of this news article first appeared in The School Law Blog.