Miriam Flores v. John Huppenthal , 789 F.3d 994 ( 2015 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIRIAM FLORES, individually and as No. 13-15805
a parent of Miriam Flores, minor
child; ROSA RZESLAWSKI, D.C. No.
individually and as parent of Mario 4:92-cv-00596-
Rzeslawski, minor child, RCC
Plaintiffs-Appellants,
v. OPINION
JOHN HUPPENTHAL, Superintendent
of Public Instruction of the State of
Arizona; STATE OF ARIZONA,
Defendants-Appellees,
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES AND PRESIDENT
OF THE ARIZONA SENATE,
Intervenors-Appellees.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted
January 12, 2015—San Francisco, California
Filed June 15, 2015
2 FLORES V. HUPPENTHAL
Before: J. Clifford Wallace, Milan D. Smith, Jr.,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Friedland
SUMMARY*
Equal Educational Opportunities Act
The panel affirmed the district court’s order, on remand
from the United States Supreme Court, granting a motion for
relief under Fed. R. Civ. P. 60(b)(5) from a judgment for
alleged violations of the Equal Educational Opportunities
Act, and vacating an injunction granting statewide relief to a
class of English Language Learners and their parents in
Arizona’s Nogales Unified School District.
The panel held that the district court complied with the
Supreme Court’s order and did not abuse its discretion in
granting defendants’ Rule 60(b)(5) motion because the
circumstances surrounding the implementation and funding
of English Language Learner programs at the state and
national levels had changed substantially since 2000, when
the judgment was entered, and the current programs
constituted “appropriate action” under the EEOA.
The panel further held that plaintiffs had not shown that
Arizona was violating the EEOA on a statewide basis, and the
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
FLORES V. HUPPENTHAL 3
facts alleged by them were insufficient to justify the
maintenance of a statewide injunction. The panel concluded
the plaintiffs were not attacking the validity of a statewide
policy; rather, they were challenging local implementation
after the first year of a four-hour English Language
Development requirement, and its alleged negative effects on
English Language Learner students, some of whom might
receive less academic content than their English-speaking
peers. The panel held that plaintiffs did not demonstrate
standing to raise statewide claims.
Judge Friedland concurred in Parts I.1-I.4 of the majority
opinion, which addressed the motion for relief from
judgment, and she concurred in the judgment. Judge
Friedland agreed with the majority that the district court
obeyed the Supreme Court’s directives regarding how the
remand in this case should proceed, and that the district court
did not abuse its discretion in, accordingly, granting Rule
60(b)(5) relief to defendants. Judge Friedland wrote
separately to address additional arguments she understood
plaintiffs to be making. Judge Friedland would hold that
although plaintiffs had standing to bring a facial challenge to
the four-hour English Language Development model adopted
for use statewide, this challenge failed on the merits. She
also would hold that plaintiffs did not show that their new
objections to the four-four model’s implementation in
Nogales constituted EEOA violations that required
maintaining an injunction in Nogales.
4 FLORES V. HUPPENTHAL
COUNSEL
Timothy M. Hogan (argued), and Joy E. Herr-Cardillo,
Arizona Center for Law in the Public Interest, Phoenix,
Arizona, for Plaintiffs-Appellants.
Melissa Iyer (argued), and Michael Dulberg, Burch &
Cracchiolo, P.A., Phoenix, Arizona, for Defendants-
Appellees.
Thomas C. Horne, Attorney General, Leslie Kyman Cooper
and Jinju Park, Assistant Attorneys General, Phoenix,
Arizona, for Defendants-Appellees State of Arizona and
members of the Arizona State Board of Education in their
official capacity.
David J. Cantelme (argued), D. Aaron Brown, and Samuel
Saks, Cantelme & Brown, P.L.C., Phoenix, Arizona, for
Intervenors-Appellees.
Jocelyn Samuels, Acting Assistant Attorney General, Dennis
J. Dimsey and Erin H. Flynn, Attorneys, United States
Department of Justice, Civil Rights Division, Appellate
Section, Washington, D.C., for Amicus Curiae United States.
FLORES V. HUPPENTHAL 5
OPINION
M. SMITH, Circuit Judge:
Plaintiffs-Appellants are a class of English Language
Learners (ELLs) and their parents (the Flores Plaintiffs) in
Nogales Unified School District (Nogales). They appeal from
the district court’s order granting the Superintendent of
Public Instruction for the State of Arizona, the State of
Arizona, the Arizona State Board of Education, the Speaker
of the Arizona House of Representatives, and the President of
the Arizona Senate (collectively, the State Defendants) Rule
60(b)(5) relief from a judgment for alleged violations of the
Equal Educational Opportunities Act (EEOA), 20 U.S.C.
§§ 1701–21. The district court also vacated its earlier
injunction granting the Flores Plaintiffs statewide relief
because it determined that the Flores Plaintiffs had not
established a “statewide” violation of the EEOA. In arriving
at its decisions, the district court followed the instructions of
the Supreme Court in Horne v. Flores, 557 U.S. 433 (2009).
On appeal, the Flores Plaintiffs argue that the district
court erred because, 1) the four-hour English language
requirement imposed on ELLs violates the EEOA because “it
results in ELL students receiving less academic content than
their English-speaking peers and the State neither provides,
nor requires school districts to provide, ELL students with an
opportunity to recover that missed content,” and it segregates
ELL students from their English-speaking peers “[if] the goal
of proficiency within one year has not been achieved”; and
2) the Flores Plaintiffs “have standing to challenge a State-
mandated policy intended to bring about a uniform method of
English language instruction to all ELL students in all
districts in Arizona.”
6 FLORES V. HUPPENTHAL
We hold that the district court did not abuse its discretion
in granting the State Defendants’ Rule 60(b)(5) motion for
relief from judgment because the circumstances surrounding
the implementation and funding of ELL programs at the state
and national levels have changed substantially since 2000,
and the current programs constitute “appropriate action”
under the EEOA. We further hold that the Flores Plaintiffs
have not shown that Arizona is violating the EEOA on a
statewide basis, and that the facts alleged by them are
insufficient to justify the maintenance of a statewide
injunction.
FACTUAL AND PROCEDURAL BACKGROUND
In 1992, the Flores Plaintiffs filed a class action suit on
behalf of “all minority ‘at risk’ and limited English proficient
children . . . now or hereafter, enrolled in the Nogales Unified
School District . . . as well as their parents and guardians.”
Horne v. Flores, 557 U.S. 433, 439–40 (2009). The Flores
Plaintiffs requested a declaratory judgment holding the State
of Arizona, the Arizona State Board of Education, and the
Superintendent of Public Instruction responsible for violating
the EEOA, which provides in relevant part:
No state shall deny equal educational
opportunity to an individual on account of his
or her race, color, sex, or national origin, by–
...
FLORES V. HUPPENTHAL 7
(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 (emphasis added).
In 2000, after a bench trial, the district court concluded
that the State Defendants1 were violating the EEOA by
providing insufficient funding to ELL students in Nogales.
Flores v. State of Arizona, 172 F. Supp. 2d 1225 (D. Ariz.
2000). Later that year, Arizona voters passed Proposition 203,
which implemented the “sheltered English immersion” (SEI)
approach statewide, and required “nearly all classroom
instruction” to be “in English but with the curriculum and
presentation designed for children who are learning the
language.” Ariz. Rev. Stat. § 15-751(5).
In 2001, just days after Congress passed the No Child
Left Behind Act (NCLB), 115 Stat. 1702, as added, 20 U.S.C.
§ 6842 et seq., the district court extended its original
declaratory judgment statewide, “even though the certified
class included only Nogales students and parents and even
though the court did not find that any districts other than
Nogales were in violation of the EEOA.” Horne, 557 U.S. at
441; No. CIV 92-596TUCACM, 2001 WL 1028369, at *2 (D.
Ariz. June 25, 2001). The state attorney general acquiesced in
this statewide extension because of “the Arizona
1
We note that plaintiffs originally sought relief against only “the State
of Arizona, its Board of Education, and its Superintendent of Public
Instruction.” Horne, 557 U.S. at 441. The Speaker for the State House of
Representatives and the President of the State Senate intervened in the suit
as representatives of their respective legislative bodies in 2006. Id. at 443.
8 FLORES V. HUPPENTHAL
constitutional requirement of uniform statewide school
funding.” Horne, 557 U.S. at 442. In 2005, the district court
held the State in contempt for failing to “appropriately and
constitutionally fun[d] the state’s ELL programs,” and
commanded the Arizona legislature (which at the time was
not a party to the suit) to allocate more funds to ELL
instruction, or be faced with contempt sanctions totaling
millions of dollars per day. Id. at 441–42 (alteration in
original) (internal quotation marks and citation omitted).
In March 2006, after accruing over $20 million in fines,
the Arizona legislature passed House Bill 2064 (HB 2064),
“which was designed to implement a permanent funding
solution to the problems identified by the District Court order
in 2000.” Id. at 442. HB 2064 increased ELL incremental
funding for ELL students, and created two new funds “to
cover additional costs of ELL programming.” Id. at 442–43.
HB 2064 also established the Arizona English Language
Learners Task Force (Task Force), which was charged with
developing and adopting research-based models for ELL
instruction using the structured English immersion approach.
The statute directed the Task Force to “identify the minimum
amount of English language development [ELD] per day for
all models,” but specified that “the task force shall develop
separate models for the first year in which a pupil is classified
as an English language learner that includes a minimum of
four hours per day of English language development.” A.R.S.
§ 15-756.01(C) (2006).
Shortly thereafter, the legislature intervened in the
ongoing litigation to defend its interests, and requested an
evidentiary hearing on a motion for Rule 60(b)(5) relief from
judgment in light of the passage of HB 2064. Horne, 557 U.S.
at 443. The district court denied the Rule 60(b)(5) motion,
FLORES V. HUPPENTHAL 9
finding that HB 2064 was fatally flawed (and inadequate) in
its allocation of ELL funding for three reasons: the increase
in funding “was not rationally related to effective ELL
programming”; the bill imposed an “irrational” two-year limit
on funding for each ELL student; and HB 2064 “violated
federal law by using federal funds to ‘supplant’ rather than
‘supplement’ state funds.” Id. at 443–44.
Our court vacated the district court’s order, and remanded
for an evidentiary hearing to determine whether Rule 60(b)(5)
relief was warranted. Id. at 444. The district court again
denied the Rule 60(b)(5) motion. We affirmed the order on
appeal because petitioners had not shown “either that there
are no longer incremental costs associated with ELL
programs in Arizona,” or that Arizona’s “educational funding
model was so altered that focusing on ELL-specific
incremental costs funding has become irrelevant and
inequitable.” Flores v. Arizona, 516 F.3d 1140, 1169 (9th Cir.
2008).
The Supreme Court reversed. It observed that the decision
had not addressed the “critical question in this Rule 60(b)(5)
inquiry” of “whether the objective of the District Court’s
2000 declaratory judgment order—i.e., satisfaction of the
EEOA’s ‘appropriate action’ standard—has been achieved.”
Horne, 557 U.S. at 450. Instead, “the Court of Appeals used
a heightened standard that paid insufficient attention to
federalism concerns” by concerning itself “only with
determining whether increased ELL funding complied with
the original declaratory judgment order.” Id. at 451. In other
words, “the Court of Appeals framed a Rule 60(b)(5) inquiry
that was too narrow—one that focused almost exclusively on
the sufficiency of incremental funding,” instead of
“ascertain[ing] whether ongoing enforcement of the original
10 FLORES V. HUPPENTHAL
order was supported by an ongoing violation of federal law
(here, the EEOA).” Id. at 452, 454.
The Supreme Court remanded the case to the district court
with detailed instructions “for a proper examination of at least
four important factual and legal changes that may warrant the
granting of relief from the judgment: the State’s adoption of
a new ELL instructional methodology, Congress’ enactment
of NCLB, structural and management reforms in Nogales,
and increased overall education funding.” Id. at 459. Finally,
the Court noted that “[t]he 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,” and questioned whether “the
District Court had jurisdiction to issue a statewide injunction
when it is not apparent that plaintiffs—a class of Nogales
students and their parents—had standing to seek such relief.”
Id. at 470–71. Accordingly, the Court instructed the district
court to “vacate the injunction insofar as it extends beyond
Nogales unless the court concludes that Arizona is violating
the EEOA on a statewide basis.” Id. at 472.
On remand, the Flores Plaintiffs elected not to file a
motion to expand the class. The district court held a three-
week evidentiary hearing on the State Defendants’ Rule
60(b)(5) motion, and allowed the Flores Plaintiffs to present
evidence of a statewide EEOA violation. The Flores Plaintiffs
argued that the State’s “adoption of models requiring that
ELL students be segregated for more than a year in four hours
of daily English language development class . . . is not
‘appropriate action’ under the EEOA” because segregation
FLORES V. HUPPENTHAL 11
prevents ELL students from “acquir[ing] the academic credits
necessary to graduate from high school within four years.”2
After examining the four factors the Supreme Court
identified as relevant to deciding the State Defendants’ Rule
60(b)(5) motion, the district court granted the motion with
respect to Nogales because “[e]normous changes have
occurred in the method by which Arizona delivers English
language instruction since judgment was entered in this case
in 2000,” including the advent of NCLB, the development of
the State’s general academic test known as the Arizona
Instrument to Measure Standards (AIMS), and the
implementation of an English proficiency test used to classify
pupils as ELL students. The district court also observed that
“the state has seen the election of a new Governor, a new
Superintendent of Schools, and a new Attorney General,” as
well as numerous changes in the membership of the Arizona
legislature. The district court concluded that the Flores
Plaintiffs’ “evidence from a few school districts” regarding
implementation of the four-hour model was “not sufficient to
establish standing to bring a statewide claim.” In addition,
“Plaintiffs’ newly asserted claims are not ‘statewide’ in
nature, but rather depend on specific implementation choices
made at a district level, thus requiring a district-by-district
analysis.” Accordingly, the district court dismissed the
statewide claims.
The Flores Plaintiffs filed this appeal.
2
The Flores Plaintiffs originally alleged three statewide violations of the
EEOA, including the manner in which ELL students are identified, and
how the students’ English proficiency is tested, but decided only to pursue
the “implementation of the Four Hour Model across the state” on appeal.
12 FLORES V. HUPPENTHAL
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction under 28 U.S.C. § 1291. We review
for abuse of discretion the district court’s decision granting
the State Defendants’ Rule 60(b)(5) motion for relief from
judgment. United States v. Asarco, Inc., 430 F.3d 972, 978
(9th Cir. 2005). We review the district court’s conclusions on
questions of standing de novo. Ellis v. City of Mesa, 990 F.2d
1518, 1523 (9th Cir. 2003).
DISCUSSION
The Supreme Court in Horne gave the district court
detailed guidance for reviewing the State Defendants’ motion
for relief from judgment on remand. 557 U.S. 433, 447–72
(2009). We conclude that the district court complied with the
Supreme Court’s order, and that relief from judgment was
properly granted.
I.
The Flores Plaintiffs contend that Rule 60(b)(5) relief
from judgment was not warranted because the state law that
mandates public school policies and practices for ELLs
throughout the State of Arizona continues to violate the
EEOA.3 They do not contest the district court’s findings of
fact. Instead, they find it “inexplicabl[e]” that the court
3
The district court expressly “limit[ed] its review of the 60(b)(5) motion
to Nogales” because it found that the “implementation decisions vary from
district to district,” and that “plaintiffs have not established any
‘statewide’ violation.” Accordingly, we also limit our review of the district
court’s ruling on the State Defendants’ Rule 60(b)(5) challenge to
Nogales.
FLORES V. HUPPENTHAL 13
“concluded that the Task Force models, with their four hour
ELD requirement, did not violate the EEOA.” We consider
the Flores Plaintiffs’ arguments in turn.
Rule 60(b)(5) permits a court to relieve a party from final
judgment if “the judgment has been satisfied, released, or
discharged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable.” Fed. R. Civ. P. 60(b)(5). A court abuses its
discretion when it refuses to modify an injunction or consent
decree in light of “a significant change either in factual
conditions or in law” that “renders continued enforcement
detrimental to the public interest.” Horne, 557 U.S. at 447
(internal quotation marks and citations omitted). The abuse-
of-discretion standard is,
highly deferential to the trial court. Under this
standard of review, we cannot simply
substitute our judgment for that of the district
court, but must be left with the definite and
firm conviction that the court committed a
clear error of judgment in reaching its
conclusion after weighing the relevant factors.
United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993)
(internal quotation marks omitted).
The Supreme Court admonished the district court for
failing to engage in the proper analysis when it denied the
State Defendants’ initial Rule 60(b)(5) motion, “ask[ing] only
whether petitioners had satisfied the original declaratory
judgment order through increased incremental funding,”
thereby “disregard[ing] the remand instructions to engage in
a broad and flexible Rule 60(b)(5) analysis as to whether
14 FLORES V. HUPPENTHAL
changed circumstances warranted relief.” Horne, 557 U.S. at
456–57. It also criticized our court for affirming the district
court’s order, and “improperly substitut[ing] its own
educational and budgetary policy judgments for those of the
state and local officials to whom such decisions are properly
entrusted.” Id. at 455. In other words, the “critical question in
this Rule 60(b)(5) inquiry is whether the objective of the
District Court’s 2000 declaratory judgment order—i.e.,
satisfaction of the EEOA’s ‘appropriate action’ standard—has
been achieved.” Id. at 450.
As we have previously stated, “[b]ecause Section 1703(f)
was proposed as an amendment from the floor of the House,
there is very little legislative history” to shed light on “the
scope of the ‘appropriate action’ requirement” in the EEOA.
Guadalupe Org. Inc. v. Tempe Elementary School Dist.,
587 F.2d 1022, 1030 (9th Cir. 1978). “The interpretation of
floor amendments unaccompanied by illuminating debate
should adhere closely to the ordinary meaning of the
amendment’s language.” Id.; see also Castaneda v. Pickard,
648 F.2d 989, 1001 (5th Cir. 1981). The Supreme Court has
instructed that the ordinary meaning of “appropriate action”
requires a State to “(1) formulate a sound English language
instruction educational plan; (2) implement that plan; and
(3) achieve adequate results.” Horne, 557 U.S. at 459, n.8
(citing Castaneda, 648 F.2d at 1009–10). Determining
whether the State is taking “appropriate action,” and whether
relief from judgment is therefore warranted, requires attention
to “federalism concerns,” which are “heightened when, as in
these cases, a federal court decree has the effect of dictating
state or local budget priorities.” Id. at 448.
In this case, “the lower courts . . . misperceived both the
nature of the obligation imposed by the EEOA and the
FLORES V. HUPPENTHAL 15
breadth of the inquiry called for under Rule 60(b)(5).” Horne,
557 U.S. at 459. To avoid further confusion, the Supreme
Court gave careful guidance concerning each of the four
factors that could warrant Rule 60(b)(5) relief on remand, and
the district court made numerous factual findings concerning
each of those factors.
1. The State’s Adoption of New ELL Instructional
Methodology
The Supreme Court directed the district court to consider
the State’s adoption of a new ELL instructional methodology,
which the Court noted appears “significantly more effective
than bilingual education . . . . In light of this, 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—constitutes a ‘significantly changed circumstance’ that
warrants relief.” Horne, 557 U.S. at 461.
In response, the district court considered a number of
developments concerning the first factor. It found that in
2000, Arizona voters approved Proposition 203, A.R.S.
§§ 15-751–15-755, which changed the primary method of
ELD in Arizona from a bilingual education model to SEI.
Proposition 203 established a one-year goal for ELLs to
become proficient, and required annual testing and
monitoring of the ELL program. A.R.S. §§ 15-752, 15-755.
The shift from bilingual education to the SEI methodology
required that all ELL students be placed in English language
classrooms and taught only in English. A.R.S. § 15-752.
Proposition 203 initially left the implementation of the
SEI model to the individual school districts, but in 2006, the
16 FLORES V. HUPPENTHAL
Arizona legislature passed HB 2064. A.R.S. §§ 15-756–15-
756.13. HB 2064 established an ELL Task Force charged
with developing a research-based model of ELL instruction
in SEI methodologies, including a minimum of four hours of
daily instruction in ELD for the first year, with the Task
Force to determine the number of hours in each year
thereafter (A.R.S. § 15-756.01); it delegated the duty of
identifying ELLs to the Superintendent of Public Instruction
(A.R.S. § 15-756); it required that the models be research-
based, with consideration paid to the size, location, grade
levels, and number of ELLs at the school (A.R.S. § 15-
756.01); it required all school districts to adopt the Task
Force’s model, or submit an alternative model for approval
(A.R.S. § 15-756.02(B)); it mandated a uniform method of
assessing and reclassifying ELL students, and for monitoring
reclassified students two years after exiting the program
(A.R.S. § 15-756.06); it required at least annual testing of
ELLs to determine whether they should be re-classified as
“English proficient” (A.R.S. § 15-756.05(A), (B)); it created
the Office of English Language Acquisition Services, which
was to monitor the school districts’ implementation of and
compliance with the models (A.R.S. § 15-756.07); and it
required the Task Force to refine the models yearly, as
necessary (A.R.S. § 15-756.01).
The Task Force met thirty-one times between September
2006 and September 2007, accepted drafts of proposed
models, consulted experts, and held public hearings before
choosing a model. The Task Force model groups students by
proficiency, and for four hours each day, requires content that
“emphasizes the English language itself” rather than “other
types of instruction, e.g. math, science, or social science.”
However, “[a]cademic content can be used as a vehicle for
delivering ELD . . . .” As the district court observed, “[t]he
FLORES V. HUPPENTHAL 17
extent to which ELL students in the four hours of ELD are
exposed to academic content can vary from school district to
school district and from school to school within a school
district” because “[t]he state does not prescribe the kind of
academic content that should be used as a vehicle for
delivering English Language Development at various grade
levels and the teachers have the flexibility to use the materials
that they want.”
2. Congress’s Enactment of No Child Left Behind
The Supreme Court also instructed the district court to
consider whether the enactment of NCLB “constitute[s] a
significantly changed circumstance, warranting relief.”
Horne, 557 U.S. at 465. It noted that the “original declaratory
judgment order,” which “withdr[e]w[] the authority of state
and local officials to fund and implement ELL programs that
best suit Nogales’ needs . . . conflict[s] with Congress’
determination of federal policy.” Id. The Court found the
enactment of NCLB “probative in four principal ways”: (1)
it prompted the State to institute significant structural and
programming changes in its delivery of ELL education; (2) it
significantly increased federal funding for education in
general and ELL programming in particular; (3) through its
assessment and reporting requirements, it provides evidence
of the progress and achievement of Nogales’ ELL students;
and (4) it makes a shift in federal education policy. Id. at
463–64.
The district court undertook its analysis of this factor as
directed by the Supreme Court. It concluded that NCLB “has
made four major changes to the delivery of ELD in Nogales
and throughout Arizona: (A) the development of the ELP
[English Language Performance standards], (B) the adoption
18 FLORES V. HUPPENTHAL
of Annual Measurable Achievement Objectives (“AMAOs”),
(C) accountability for failure to achieve AMAOs, and
(D) increased funding.” The district court noted that, “In
2009, Nogales met its Annual Yearly Progress (AYP)
requirements as required by NCLB by reclassifying more
than 15% of its ELL students.” In addition, NCLB “devises
an elaborate accountability structure for a district’s failure to
achieve AMAOs, including the requirement of corrective
action, NCLB § 1116(b)(7), and sanctions starting at
decreased funding and culminating in a takeover of failing
schools. NCLB § 1116(b)(8).”
3. Structural and Management Reforms in Nogales
As to the third change—structural and management
reforms in Nogales—the Supreme Court made clear that it
was “error” for “both courts [to] refuse[] to consider that
Nogales could be taking ‘appropriate action’ to address
language barriers even without having satisfied the original
order” through, for example, Nogales superintendent “[Kelt]
Cooper’s structural, curricular, and accountability-based
reforms.” Horne, 557 U.S. at 466–67. Accordingly, the
district court found that “[b]eginning with Superintendent
Cooper and continuing with Superintendent McCollough,
Nogales has implemented substantial structural and
management reforms that have significantly elevated its
performance.” Nogales’ teacher salaries are now “competitive
within Arizona, and very competitive within its region,” and
it is “no longer the case” that Nogales has “inadequate
teaching materials for both content and ESL classes.”
Nogales “created a centralized textbook adoption program,
which addressed the Court’s concerns regarding the adequacy
of teaching materials,” and “established various
FLORES V. HUPPENTHAL 19
compensatory education programs including summer school
and after-school tutoring.”
4. Increased Overall Education Funding
Finally, the district court turned to the issue of funding,
the factor that lay at the heart of its earlier orders holding
Arizona in violation of the EEOA. The Supreme Court noted
that the “five sources of funding that collectively financed
education in the State” at the time the original declaratory
judgment was entered “have notably increased since 2000,”
and constitute “[a] fourth potentially important change . . . in
Nogales.” Horne, 557 U.S. at 468. On remand, the district
court acknowledged the “several income streams” by which
Arizona funds local education, and carefully examined the
funding changes statewide, and in Nogales. Statewide
equalization funding (intended to make sure all districts are
on a level playing field) increased from $3.413 billion in
2000 to $5.776 billion in 2010. As a result of NCLB,
Arizona’s share of Title I funding increased from
$359,247,997 in 2000 to $582,931,537 in 2010. The 2009
American Recovery and Reinvestment Act “sent about one
and a half billion dollars in FY 2010 for education purposes”
“[f]or Arizona alone.” In 2000, Nogales voters approved a
budget override, “and the funds it has generated have
increased from $895,891 in FY 2001 to $1,750,825 in FY
2010.” Funding per pupil in Nogales increased by 44% over
the past decade, from $3,675 in 2000 to $5,306 in 2010. The
court concluded that “Nogales has an effective ELD program.
Its FEP-2s [students who have reclassified as proficient for
two years] rank higher on AIMs reading, writing, and
mathematics at all elementary and middle grades,” and “[i]ts
reclassification rates consistently have placed at the top or
near the top of nine sister districts at the border.”
20 FLORES V. HUPPENTHAL
We conclude that the district court carefully followed the
Supreme Court’s instructions on remand, and did not abuse
its discretion in determining that in light of the changed
circumstances in Nogales and in the State over the course of
more than a decade, Rule 60(b)(5) relief was warranted.
II.
We turn now to the question of whether the Flores
Plaintiffs have alleged a statewide violation of the EEOA.
Our conclusion that Rule 60(b)(5) relief was properly granted
because the State Defendants’ ELL programs in Nogales
constitute “appropriate action” under the EEOA prefigures
our conclusion that Arizona is not violating the EEOA on a
statewide basis. As the State Defendants observe, the
expansion of the injunction statewide “was made solely as a
means (disagreed with by the Supreme Court) of affording
effective relief in [Nogales]. Thus, with [Nogales]’s
shortcomings having been fixed, and with it now conducting
an effective ELD program, the rationale for granting
statewide relief collapses.” Nevertheless, because the
Supreme Court instructed the district court, if “press[ed],” to
determine whether “Arizona is violating the EEOA on a
statewide basis,” we proceed with an analysis of the Flores
Plaintiffs’ statewide claims on appeal.
We note initially that the Flores Plaintiffs represent only
a class of Nogales students and their parents. The class was
never certified to extend statewide, and the Flores Plaintiffs
declined to seek an expansion of the class. It appears that the
district court undertook no standing analysis when it extended
its injunction to apply statewide. In its discussion of the
district court’s entry of statewide relief, the Supreme Court
observed that
FLORES V. HUPPENTHAL 21
[t]he 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. . . . Nor have respondents
explained how the EEOA could justify a
statewide injunction when the only violation
claimed or proven was limited to a single
school district. See [Missouri v.] Jenkins,
515 U.S.[ 70,] 89–90 [(1995)], 115 S. Ct.
2038; Milliken [v. Bradley], 433 U.S.[ 267,]
280 [(1977)], 97 S. Ct. 2749. It is not even
clear that the District Court had jurisdiction to
issue a statewide injunction when it is not
apparent that plaintiffs—a class of Nogales
students and their parents—had standing to
seek such relief.
Horne, 557 U.S. at 470–71. Accordingly, “[a]ssuming that
petitioners, on remand, press their objection to the statewide
extension of the remedy, 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.” Id. at 472.
On remand, the district court permitted the Flores
Plaintiffs to present evidence of a statewide violation of the
EEOA that would justify the continued enforcement of the
statewide remedy. The district court concluded that,
“Plaintiffs’ newly asserted claims are not ‘statewide’ in
nature, but rather depend on specific implementation choices
made at the district level.” We hold that the district court
properly dismissed the Flores Plaintiffs’s statewide claims
because the Flores Plaintiffs are not attacking the validity of
22 FLORES V. HUPPENTHAL
a statewide policy; rather, they are challenging local
implementation after the first year of the four-hour English
language requirement, and its alleged negative effects on ELL
students, some of whom may receive less academic content
than their English-speaking peers.4
In Jenkins, the Court made clear that, “[T]he nature of the
. . . remedy is to be determined by the nature and scope of the
. . . violation.” Jenkins, 515 U.S. at 89 (alteration in original);
see also Horne, 557 U.S. at 470–71. “The proper response to
an intradistrict violation is an intradistrict remedy . . . .”
Jenkins, 515 U.S. at 90. “[O]nly if there has been a
systemwide impact may there be a systemwide remedy,”
Lewis v. Casey, 518 U.S. 343, 359–60 (1996) (quoting
Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (alteration in
original)). In other words, in order to seek statewide relief on
behalf of all ELL students in Arizona, the Flores Plaintiffs
must demonstrate “widespread actual injury,” not just
“isolated instances of actual injury,” as a result of Arizona’s
alleged violation of the EEOA. See Lewis, 518 U.S. at 349.
This requirement “derives ultimately from the doctrine of
standing, a constitutional principle that prevents courts of law
from undertaking tasks assigned to the political branches.” Id.
at 349. Article III standing requires, (1) that the plaintiff have
suffered a concrete and particularized “injury in fact,” which
is neither speculative nor conjectural; (2) that there be a
causal connection between the injury alleged and the
4
The Flores Plaintiffs are not making a separate claim that the model’s
segregation of ELL students violates the Fourteenth Amendment. In fact,
the Flores Plaintiffs disclaim this theory. Instead, they argue that
segregating students after the first year violates the EEOA because it
denies them access to the same academic content as their non-ELL peers.
This claim is therefore an alternative argument for why Arizona’s four-
hour ELD model violates the EEOA.
FLORES V. HUPPENTHAL 23
challenged conduct; and (3) that it “be ‘likely,’ as opposed to
merely ‘speculative,’ that the injury will be ‘redressed by a
favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S.
555, 560–61 (1992). And when plaintiffs seek a systemwide
injunction for widespread wrongs, they must demonstrate that
the expansive scope of the injunction sought is no broader
than necessary to remedy the “inadequacy that produced the
injury in fact that the plaintiff has established.” Casey,
518 U.S. at 357. This is because
standing is not dispensed in gross. If the right
to complain of one administrative deficiency
automatically conferred the right to complain
of all administrative deficiencies, any citizen
aggrieved in one respect could bring the
whole structure of state administration before
the courts for review. That is of course not the
law.
Lewis, 518 U.S. at 358 n.6 (1996).
The Flores Plaintiffs argue that they have standing to raise
statewide claims because of “the inevitability of the statewide
impact that any ruling on the Plaintiffs’ claims, favorable or
unfavorable, will have.” However, the possible effects of a
speculative, future court-ordered remedy are insufficient to
confer standing on the Flores Plaintiffs to bring their
statewide claim in the first instance. See Am. Civil Liberties
Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006)
(“When evaluating whether these three elements are present,
we must look at the facts as they exist at the time the
complaint was filed.”) (internal quotation marks omitted)
(emphasis in original). The Flores Plaintiffs have not
established “widespread actual injury” as a result of
24 FLORES V. HUPPENTHAL
Arizona’s alleged violation of the EEOA, Lewis, 518 U.S. at
349, and therefore, have not “explained how the EEOA could
justify a statewide injunction,” Horne, 557 U.S. at 470.
The Flores Plaintiffs appear to be challenging the four-
hour model as facially violating the EEOA because Arizona
does not require districts “to provide ELL students with an
opportunity to recover missed academic content.” In reality,
they are attacking the implementation of the four-hour model,
and its alleged negative effects on ELL students. Indeed, the
Flores Plaintiffs admit that they are not challenging the model
as applied to all ELL students: “Plaintiffs believe that the
models should be given a chance to work for first year
English language learners as the Legislature prescribed.”
Instead it is the “[c]ontinued placement of elementary and
high school students in the four hour model after the first year
[that] constitutes a failure to take ‘appropriate action’ . . . .”
The Flores Plaintiffs’ chief complaint is that the four-hour
model is defective (i.e., does not constitute “appropriate
action” under the EEOA) because “[t]he state does not
require school districts to provide ELL students with an
opportunity to recover the academic content that they missed
while they were in the four hour model and makes no effort
to determine whether ELL students have been deprived of
academic content as a result of being placed in four hours of
ELD.” But the EEOA imposes no such requirement on the
school districts; it requires only that a State “‘take appropriate
action to overcome language barriers’ without specifying
particular actions that a State must take. . . . Congress
intended to leave state and local educational authorities a
substantial amount of latitude in choosing the programs and
techniques they would use to meet their obligations under the
EEOA.” Horne, 557 U.S. at 440–41 (quoting Castaneda v.
FLORES V. HUPPENTHAL 25
Pickard, 648 F.2d 989, 1009 (5th Cir. 1981)); cf. Guadalupe,
587 F.2d at 1030.
The record is replete with evidence that underscores the
extent to which implementation of this model—and more
specifically, the academic content that ELL students
receive—varies from district to district. For example,
Humboldt Unified School District incorporates academic
standards promulgated by the State into its ELL curriculum,
and delivers content-based instruction that conforms to those
standards. It also provides before-and-after-school programs,
as well as summer school classes, to deliver academic content
to ELL students.5 Amphitheater High School in the
Amphitheater Public School District works with ELL
students to place them in mainstream core classes, like math,
at the same time that they are learning English in four-hour
blocks. This district-by-district implementation of a general,
State-mandated educational framework is consistent with the
requirements of the EEOA. Such local variation makes it
impossible for the Flores Plaintiffs to establish a widespread,
homogeneous injury sufficient to justify statewide injunctive
relief.
The Flores Plaintiffs also contend that “segregation” of
ELL students beyond the first year violates the EEOA
because, by definition, it is not necessary to achieve
5
As the Flores Plaintiffs note, HB 2064 limits “‘compensatory
instruction’ outside the regular school day . . . to English language
instruction and does not include providing instruction to ELL students in
academic content areas that they may have missed as a result of
participating in the Task Force models.” However, this does not change
the fact that, as with the standard four hours of ELD instruction during the
school day, the amount of core academic content disseminated during
compensatory instruction varies by school district.
26 FLORES V. HUPPENTHAL
Arizona’s stated academic goal of proficiency within one
year. They frame the injury that stems from this alleged
violation as a denial of ELL students’ educational
opportunities. The argument is therefore duplicative of their
contention that the four-hour English language requirement
violates the EEOA because it results in ELL students
receiving less academic content than their English-speaking
peers. This injury cannot provide a basis for a statewide
remedy because the four-hour model is implemented
differently across the State. For example, the model explicitly
allows ELL students who have achieved an “intermediate”
level of English proficiency and have passed certain tests to
be excused from up to two hours per day of ELD instruction.
A.R.S. § 15-752(A) permits schools and districts to request
approval of an alternative model, which in the case of
Glendale Union High School has resulted in a program that
allows juniors and seniors who are on track to graduate and
who meet certain other requirements to be exempted from
one to two hours of ELD instruction.
The Flores Plaintiffs are not arguing that four hours of
ELD instruction violates the EEOA per se, but rather that the
State is violating the EEOA through proficiency grouping
after the first year, and by not also requiring districts “to
provide ELL students with an opportunity to recover missed
academic content.” These are not statewide claims; instead,
they contemplate alleged injuries that result from the
implementation of the four-hour model, which varies from
district to district, and cannot form the basis of claims for
statewide injunctive relief.
FLORES V. HUPPENTHAL 27
CONCLUSION
The Supreme Court gave clear instructions to the district
court on remand. We conclude that the district court carefully
followed those instructions. It was not an abuse of discretion
to grant the State Defendants’ Rule 60(b)(5) motion because
changed circumstances warrant granting the State Defendants
relief from judgment. Likewise, the Flores Plaintiffs have not
alleged a statewide violation of the EEOA that is adequate to
justify the continued enforcement of a statewide injunction.
The pending motions are denied as moot. Each party shall
bear its own costs on appeal.
AFFIRMED.
FRIEDLAND, Circuit Judge, concurring in Parts I.1–I.4 of
the majority opinion, and concurring in the judgment:
I agree with the majority that the district court obeyed the
Supreme Court’s directives regarding how the remand in this
case should proceed, and that the district court did not abuse
its discretion in, accordingly, granting Rule 60(b)(5) relief to
Defendants. I nevertheless write separately because I
understand Plaintiffs to be making additional arguments not
addressed by the majority, and I believe their arguments merit
a response. Specifically, I understand Plaintiffs to be arguing
that, on its face, the four-hour English Language
Development (“ELD”) model adopted by the state Task Force
violates the Equal Educational Opportunities Act (“EEOA”)
because it requires “segregation” of English Language
Learners (“ELLs”) for four hours per day even after their first
28 FLORES V. HUPPENTHAL
year of ELD instruction. I also understand Plaintiffs to be
arguing that, even if the original statewide injunction is no
longer justified, an injunction should remain in place in
Nogales because Nogales’s implementation of the four-hour
ELD model results in loss of academic content and
unnecessary segregation for ELLs and thus violates the
EEOA.
In response to those arguments, I would hold that
although Plaintiffs have standing to bring a facial challenge
to the four-hour ELD model adopted by the Task Force for
use statewide, their challenge fails on the merits. Further, I
would hold that Plaintiffs have not shown that their new
objections to the four-hour model’s implementation in
Nogales constitute EEOA violations that require maintaining
an injunction in this case.
I.
Plaintiffs argue that the “four hour ELD requirement
beyond the first year violates the EEOA because the degree
of segregation required by the State is not necessary to
achieve the State’s academic goal of proficiency in one year.”
I understand this to be a facial challenge to the statewide
imposition of the four-hour ELD model.
In my view, Plaintiffs have standing to bring such a facial
challenge. Plaintiffs have described a concrete and
particularized “injury in fact” because they are subject to the
four-hour model, and thus to its requirement that they learn
English in a separate classroom. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992). That injury is caused by
the four-hour model, and it is likely that changing the model
would lead Nogales to change its ELD program, so the
FLORES V. HUPPENTHAL 29
causation and redressability requirements for standing are
also met. See id. at 560–61. That Plaintiffs are all from
Nogales does not prevent them from having standing to
facially challenge what is effectively a state law, because the
statewide requirement impacts them personally. See Ariz.
Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1280–81
(9th Cir. 2003) (per curiam) (holding that the plaintiffs had
standing to challenge a statewide rule governing primary
elections, even though primary elections were administered
at the county level); Burdick v. Takushi, 937 F.2d 415,
417–18 (9th Cir. 1991) (holding that the plaintiff had standing
to challenge a statewide prohibition on write-in voting that
affected him personally, even though an “order striking down
the prohibition may apply to races in which [he could not]
vote”).
On the merits, however, this facial challenge fails. It is
not impermissible segregation to group students by language
ability as long as there is a legitimate educational reason for
doing so. See Castaneda v. Pickard, 648 F.2d 989, 998, 1009
(5th Cir. Unit A June 1981). We owe deference to state
educational experts’ opinions, including the Task Force
members’ determination here that students learn English best
when taught in a separate classroom. See Horne v. Flores,
557 U.S. 433, 468 (2009) (“The EEOA’s ‘appropriate action’
requirement grants States broad latitude to design, fund, and
implement ELL programs that suit local needs and account
for local conditions.”); Castaneda, 648 F.2d at 998, 1009
(recognizing that school districts have discretion to decide
whether language ability grouping is appropriate); cf. LaVine
v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001)
(recognizing the “substantial deference” owed to educators in
the First Amendment context because “[t]he daily
administration of public education is committed to school
30 FLORES V. HUPPENTHAL
officials”). It was not unreasonable for the Task Force to
conclude that separating students by language proficiency for
up to four hours each day would enable ELLs to develop their
English language skills most quickly. Indeed, Plaintiffs do
not even dispute this general principle. As the majority
observes, Plaintiffs admit that they are not challenging the
four-hour model as applied to first-year ELLs. Plaintiffs
offer no support for their proposed distinction between the
first and subsequent years of ELD—either in terms of why
studying in a separate classroom becomes less helpful for
language acquisition after the first year or in terms of why
this separation becomes more harmful. Their facial challenge
to the statewide requirement that ELLs receive English
instruction in a separate classroom after the first year is
therefore unavailing.
II.
I understand Plaintiffs to be making the additional
argument that Nogales’s implementation of the four-hour
model violates the EEOA by providing insufficient access to
academic content for ELLs and by separating ELLs from
their mainstream peers more than is necessary to teach them
English. These arguments differ from Plaintiffs’ original
claim in this lawsuit (that Nogales’s inadequate funding of
ELD violated the EEOA), and Plaintiffs’ new arguments are
not clearly addressed by the four considerations that the
Supreme Court articulated in response to the original funding-
based claim.1 Horne, 557 U.S. at 459. As students from
1
Although these claims were not part of Plaintiffs’ original lawsuit, and
although Plaintiffs presented these arguments in the district court
primarily as statewide challenges to the four-hour ELD model, the district
court explicitly reached these arguments, construing them as challenges
FLORES V. HUPPENTHAL 31
Nogales, there is no question that Plaintiffs have standing to
make these arguments. On the current record, however, the
challenges to the implementation of the four-hour model in
Nogales fail on the merits.
With regard to ELLs’ access to academic content in
Nogales, the district court found that “Nogales has an
effective ELD program.” Based on the performance of
former ELLs in Nogales, this factual finding was not clearly
erroneous. Former ELLs who have been classified as
English-proficient for at least two years (“FEP-2s”) met or
exceeded state and district averages on AIMS tests in almost
all subject-grade combinations in 2006–2009—all of the
years for which AIMS data are available in the record.
The district court also appropriately found that Nogales
provides substantial support for ELLs and former ELLs to
compensate for any diminished exposure to academic content
resulting from ELD. For example, Nogales offers summer
school and after-school tutoring. These programs cover
academic subject areas beyond English, including support for
science and math. The fact that FEP-2s in Nogales had a high
school graduation rate over 90% each year between 2006 and
2010 also supports the conclusion that ELLs are eventually
exposed to necessary academic content.
With regard to their segregation allegations, Plaintiffs
argue that, pursuant to guidance provided by the Department
of Education’s Office for Civil Rights (“OCR”), Nogales’s
to Nogales’s implementation of the Task Force model. Defendants have
not argued that Plaintiffs waived these Nogales-specific arguments by not
presenting them more distinctly below, or by not raising them earlier in
the litigation.
32 FLORES V. HUPPENTHAL
implementation of the four-hour model violates the EEOA
because it is not “the least segregative manner” of ELD.
“Dear Colleague” Letter from U.S. Dep’t of Justice, Civil
Rights Div., and U.S. Dep’t of Educ., Office for Civil Rights
22 (Jan. 7, 2015), available at http://www2.ed.gov/about/
offices/list/ocr/letters/colleague-el-201501.pdf. The OCR
letter interprets the EEOA as requiring schools to “avoid
unnecessary segregation of” ELLs, and opines that a program
that separated ELL from non-ELL students “in subjects like
physical education, art, and music” or “during activity periods
outside of classroom instruction” probably would violate this
requirement. Id. Assuming that the OCR letter correctly
interprets the EEOA, Plaintiffs have not put forward evidence
showing that implementation of the four-hour model in
Nogales results in language-ability-based grouping for more
than the ELD portion of the day. To the contrary, Defendants
have presented evidence that ELLs in Nogales participate in
extracurricular activities alongside non-ELLs, and that former
ELLs have access to the full academic curriculum.
* * *
The record does not contain enough years of ELL
performance data after the implementation of the four-hour
model to be certain of the model’s effectiveness at teaching
English or of its long-term impact on overall academic
success. The district court appropriately concluded, however,
that, based on the evidence that does exist, Plaintiffs could
not show their new challenges to the implementation of the
four-hour model in Nogales require maintaining an
injunction.
If evidence of an EEOA violation emerges in the future,
a new lawsuit could of course be brought. But the district
FLORES V. HUPPENTHAL 33
court here correctly concluded that the current lawsuit “is no
longer the vehicle to pursue the myriad of educational issues”
about which Plaintiffs are concerned. The district court
appropriately concluded that the injunction imposed in this
lawsuit is no longer justified by Plaintiffs’ original claims,
and that their new claims fare no better. The district court
therefore did not err in vacating the injunction.