Supreme Court Preview: Horne v. Flores

By Mark Walsh — April 13, 2009 5 min read
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This is the first in a series of previews in the School Law Blog on the three education cases being argued in the U.S. Supreme Court this month.

A quirky case over whether the state of Arizona’s spending on English-language learners satisfies an obscure federal civil rights law goes before the U.S. Supreme Court next week.

One surprise of Horne v. Flores (Case No. 08-289) is that the appeal has attracted far more friend-of-the-court briefs than the other two education cases the justices will hear this month, one involving the constitutionality of a school’s strip-search of a student and the other involving special education.

Besides briefs from education groups and public-interest legal organizations, dueling groups of education policy scholars are using the case to advance their arguments about the merits of spending more money on schools.

Another twist in the case involves a tangle of political alliances in Arizona. The leaders of the state legislature and the elected state superintendent are on one side of the case, while the state itself, the state attorney general, and the state board of education are on the other side. As governor until early this year, Janet Napolitano, a Democrat who is now the U.S. secretary of homeland security, also was on the state’s side in favor of increased spending on ELL programs.

Her Republican successor has sought in recent weeks to align the state with the legislative leaders and the state superintendent.

Gov. Jan Brewer last month asked state Attorney General Terry Goddard, a Democrat, to file a brief supporting a 2006 state law on funding programs for English-language learners, as the Associated Press reported here. But Goddard has refused, and the brief for the state—the one filed by the attorney general—sides with the plaintiffs in a 17-year old lawsuit that sought more funding for ELL programs.

Education Week’s Mary Ann Zehr recently traveled to Nogales, Ariz., where the class action at the heart of the Supreme Court case originated in 1992, and she filed this report.

A federal district judge in Arizona ruled in 2000 that the state had violated the “appropriate action” language of the federal Equal Educational Opportunities Act of 1974 by failing to provide adequate funding for its ELL instructional methods. Under the federal civil rights law, each state must “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.”

U.S. District Judge Raner C. Collins of Tucson ruled in 2007 that a 2006 law passed by the state legislature that increased per-pupil ELL funding and made other changes to the state’s program did not go far enough. The state law increased a per-pupil extra amount for English-language learners to $444 from $365, and authorized school districts to seek additional funding for such students. But the law effectively supplanted certain federal funds, and it cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

That led Judge Collins to conclude that the state’s ELL funding system remained irrational and in violation of the EEOA. In upholding the judge’s ruling last year, the U.S. Court of Appeals for the 9th Circuit court said in an opinion that “despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance.”

In their separate appeals, the state legislative leaders and Arizona Superintendent of Public Instruction Thomas C. Horne argue that the federal No Child Left Behind Act, with its extensive requirements for the states on English-language learners, should trump the 1974 law.

“When a state complies with its NCLB obligations, it is, by definition, taking ‘appropriate action’ for the purposes of the EEOA,” says the merits brief for the speaker of the Arizona House and the president of the state Senate.

The state of Arizona, at least as represented by the state attorney general, argues in its brief that the current state ELL law, because it requires an offset of federal funds to districts, runs the risk of exposing Arizona to a reduction of federal funds under the NCLB. And the state disagrees that the NCLB law sets the standard for compliance with the Equal Educational Opportunities Act.

On that point, and others, the state has the federal government on its side. The U.S. solicitor general’s office filed a brief which says that the federal district court was within its powers in requiring state lawmakers to develop and appropriately fund a statewide program for ELL education.

Among the more than a dozen friend-of-the-court briefs filed on both sides of the case, the most heated are from the dueling groups of scholars.

On the side of the legislative leaders and the state superintendent is a group of right-leaning education professors and researchers who frame the Arizona case as part of the debate over whether more accountability or greater resources are the answer to improving education.

“There is scant evidence that past judicial actions concerning school finance have had any beneficial effect on student performance,” says the brief, which is signed by such scholars as Eric A. Hanushek of Stanford University, Frederick M. Hess of the American Enterprise Institute, Paul T. Hill of the University of Washington, and 18 others.

The brief’s assertion that it was the “consensus view of education-policy experts” that increased funding is not the answer prompted a retort from 23 more left-leaning researchers, who filed a brief on the side of the state.

“A significant and growing body of empirical research … recognizes that, although funding alone will not guarantee students’ success, inadequate funding ensures their failure,” says the brief signed by such scholars as Gary Orfield of the University of California, Los Angeles, and Michael A. Rebell and Amy Stuart Wells of Columbia University, among others.

With a complicated history, a political tug-of-war hanging over it, and prominent scholars imbuing the case with larger issues, Horne v. Flores should make for a very interesting hour of argument on April 20.

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