Flores v. Horne ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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
No. 07-15603
STATE BOARD OF EDUCATION, and
D.C. No.

its individual members in their
official capacities, CV-92-00596-RCC
Defendants-Appellees, District of Arizona,
Tucson
THOMAS C. HORNE, Superintendent
of Public Instruction,
Defendant-Appellant,
and
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,
Intervenors.

4101
4102 FLORES v. HORNE
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.
No. 07-15605
SPEAKER OF THE ARIZONA HOUSE OF
D.C. No.
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,  CV-92-00596-RCC
District of Arizona,
Intervenors-Appellants,
Tucson
and
ORDER
STATE OF ARIZONA and the ARIZONA
STATE BOARD OF EDUCATION, and
its individual members in their
official capacities, THOMAS C.
HORNE, Superintendent of Public
Instruction,
Defendants.

Filed April 17, 2008
Before: Betty B. Fletcher, Marsha S. Berzon, and
Johnnie B. Rawlinson, Circuit Judges.
ORDER
The full court has been advised of the petitions for rehear-
ing en banc. No judge of the court has requested a vote on en
banc rehearing. See Fed. R. App. P. 35(f). Judges Berzon and
Rawlinson voted to deny the petitions for rehearing en banc
and Judge Fletcher so recommended.
FLORES v. HORNE 4103
The panel has voted to amend its opinion and to deny the
petitions for rehearing with the following amendment.
The opinion filed February 22, 2008 and published at 516
F.3d 1140 is amended as follows:
On page 1178, add the following paragraph to footnote 52
following the last sentence of the footnote:
Our conclusion is unaffected by 20 U.S.C.
§ 6321(d), which provides an exception to some fed-
eral fiscal requirements for a narrow class of state
funds expended for programs benefitting disadvan-
taged children. Arizona receives funding from sev-
eral other federal programs. We need not decide if
§ 6321(d) could ever affect the application of
§ 7902, because § 15-756.11(E)’s consideration of
federal funds is not limited to funds covered by
§ 6321(d). So, even if the exception were relevant
here, it would not excuse Arizona from complying
with federal fiscal requirements which it does not
cover and § 15-756.11(E) would thus still violate
§ 7902. In any event, it is far from clear, although we
need not decide the matter, that the compensatory
instruction funds would be covered by the exception
in the first place. See 20 U.S.C. § 6321(d) (limiting
the exception to “supplemental State . . . funds
expended . . . for programs that meet the intent and
purposes of this part”); see also 34 C.F.R. § 200.79
(defining the boundaries of the “intent and purposes”
exception).
* * *
No further petitions for rehearing or rehearing en banc will be
entertained. The mandate shall issue in due course.
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