Horne v. Flores – Oral Argument – April 20, 2009

Media for Horne v. Flores

Audio Transcription for Opinion Announcement – June 25, 2009 in Horne v. Flores

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John G. Roberts, Jr.:

We will hear argument next in Case 08-289, Horne v. Flores and the consolidated case.

Mr. Starr.

Kenneth W. Starr:

Mr. Chief Justice, and may it please the Court: In January of 2000 the district court in Arizona concluded that the Nogales school system had failed to provide an equal educational opportunity for its English language learners in that particular district.

David H. Souter:

I — I thought the determination was that it had failed to provide funds that could reasonably accomplish the — the — the plan which the district itself had adopted.

Kenneth W. Starr:

Well, Your Honor, the specific finding was that there needed to be — there were very elaborate findings here.

There needed in fact to be remediation to in fact support a plan, and the State–

David H. Souter:

But the district agreed on that, I take it.

The district said, you’ve got to do something.

This is our plan.

And I thought the district court then said — the school district did that, and I thought the district court then said, well, the — the funding that you have come up with, or the funding scheme you have come up with simply is not rationally related to the plan that you, yourself, have adopted.

Am I — am I wrong on that?

Kenneth W. Starr:

–You are correct.

David H. Souter:

Okay.

Kenneth W. Starr:

It needs to be a rational plan.

But then by the time of the 60(b) hearing, the circumstances had dramatically changed.

There had been a failure.

But in November of 2000, a sea change occurred in educational policy.

The old system in Nogales was done away with throughout the State.

Strategic English Immersion, intense immersion, and the results are already being shown.

Nogales–

Ruth Bader Ginsburg:

What was the year, Mr. Starr, the year of that change to the SEI from the bilingual education?

What was the year of that?

Kenneth W. Starr:

–The voters voted it in, in November of 2000, and it began feathering in very promptly as soon as the school districts could in fact respond, and Nogales–

Ruth Bader Ginsburg:

And yet the district court kept renewing his instruction, provide funding that reasonably relates to the cost, many, many times after the SEI became effective.

And we — we have the original decree which was, what, a declaratory judgment in 2000.

Then he issues a series of order.

None — and none of them are ever appealed.

Kenneth W. Starr:

–That is true.

And in fact one of the grounds of our submission this morning is that the failure to appeal should be in fact a cause for concern.

Indeed, 60(b)(5) is all about exceptions to finality, especially when we are dealing with a very quintessential State and local function, namely, education.

Kenneth W. Starr:

And, thus, the court should have been open to consider what the Ninth Circuit had commanded it consider, namely the changed circumstances.

And what were those changed circumstances?

Nogales was doing great.

A new leadership came in.

Superintendent Cooper made tremendous reforms.

The State responded, not only with a new methodology, but by funding that methodology.

And, Your Honor, all of this–

Stephen G. Breyer:

Nogales was doing great?

I mean, I asked my clerk to go get some figures out of the record and she says in 2008 in the sixth grade, just to take an example, 77 percent of the English learners in Nogales failed the tests as compared to 32 percent statewide.

In the tenth grade 84 percent failed the reading exam compared with 34 percent statewide.

In 2008 the reading exam fourth graders, 67 percent failed in Nogales, the English learners, compared to 30 percent statewide.

Now, I’m sure that progress has been made, but it doesn’t seem to me, looking at that kind of thing — and the record is filled with that kind of thing — that that — that you could say that the objectives are achieved.

Kenneth W. Starr:

–Your Honor, first of all, the exam to which you are referring is given in English.

If I am taking German, then I am not going to do well in a German–

Stephen G. Breyer:

Well, isn’t the point of this to teach the children to learn English?

Kenneth W. Starr:

–But the point is the — the exam that you should look at is the AZELA exam.

Antonin Scalia:

Excuse me.

I am not following this exchange because I don’t understand whether the — the statewide percentage is the statewide percentage of English learners or the statewide percentage of all students.

Kenneth W. Starr:

Here is — and I think we can cut to — I’m sorry.

Antonin Scalia:

If you can’t answer that, I think Justice Breyer can.

But I would like to know what comparison–

Stephen G. Breyer:

He doesn’t actually have the right to ask me questions.

[Laughter]

Antonin Scalia:

–I don’t.

That’s — that’s exactly true.

But–

John G. Roberts, Jr.:

Very much true.

Counsel, why don’t you try and answer?

Kenneth W. Starr:

Thank you.

I would go, if I would — if you would, to page 46a of our Pet.

Kenneth W. Starr:

Ap, where you — Petition Appendix, where you, in fact, get the information summarized, and then go to — and this is the Ninth Circuit’s own words that “Nogales is doing substantially better”,

“the State has developed a significantly improved infrastructure. “

And then if you go to the superintendent’s Petition Appendix, you will see — this is the relevant information under No Child Left Behind, which is one of the changed circumstances — the Nogales students are, in fact, doing better than across the State.

The key is to measure the progress that has, in fact, been made and that is not disputed.

Everyone agrees.

John G. Roberts, Jr.:

Well, I still don’t have an answer to Justice Breyer’s — I guess Justice Scalia’s question following up on Justice Breyer’s.

What are the parameters or the — the data with respect to the figures Justice Breyer gave you?

Kenneth W. Starr:

Yes.

The key, I would refer the Court to Appendix 312 of the superintendent’s petition and the prior pages.

And that gives the percentage of students making progress under the exams that are administered by the State statewide, and that you will see that throughout, including in the high school, that the students are, in fact, making progress.

The district court concluded that Nogales had–

John G. Roberts, Jr.:

So the answer is that Justice Breyer’s figures are correct with respect to the appropriate bases of children.

You are just saying that you want to use a different test than the one that he was quoting?

Kenneth W. Starr:

–Well, again, my quarrel with his figures had to do with the nature of the test being exam.

There are different tests being administered.

John G. Roberts, Jr.:

Right.

The figures are accurate.

You just think a different test should be used?

Kenneth W. Starr:

That one shouldn’t take too seriously a test that is–

Stephen G. Breyer:

All right.

Let’s take the one you mentioned.

Let’s take the one you mention.

The one you mentioned, I take it the student academic achievement in mathematics, which is something called the AYP guidelines test, they are for high school, which you mentioned.

It has — I think it’s 2008, maybe it’s 2007 — we have limited English proficient students, this is passing their test, 22.4 percent of the English learners are at students scoring at or above proficient.

The overall rate is 68 percent.

So it seems like about a third.

Now, if you look at the reading language arts, the average is 73.5.

Limited English proficient is 15.4.

And that’s quite a difference, 75 percent as to 15.4, in the high schools, on the tests that you have mentioned.

So I just say — my only point is that we have a couple of findings here; you are right, they have made progress, but they are not quite home yet.

Stephen G. Breyer:

And I would say that, looking at this record, it seems to suggest that.

Kenneth W. Starr:

–But not home yet, Your Honor, is, in fact, the key question.

What is home?

And that brings us to–

Stephen G. Breyer:

Let’s do another one.

What they started out in the year 2000 is they said one problem with this State is we don’t know what it costs the average — the increased program.

They haven’t done a good study to tell what it costs.

But we think it’s somewhere around $1500, maybe it’s $1300, maybe it’s $1400 per student.

And as of this very moment, the State is providing 3 to $400, leaving it up to the school district to find the rest of the money, which it has to take from other things like English, or — is that right?

Kenneth W. Starr:

–No, that is incorrect, Your Honor.

First of all, there has been a substantial increase in funding, which we supply and summarize at pages 22 and 23 of the opening brief.

And you will see throughout the testimony — the testimony is absolutely clear, including the plaintiffs’, the Respondents’, key witness, Dr. Zumudio, agreed that there has, in fact, been substantial progress, indeed there is an effective program in place.

And so our fundamental quarrel with the approach of the district court is it blinded itself to the significant changes structurally as well as the progress that had been made and just said it doesn’t matter because this is all about funding, and that is not true.

Ruth Bader Ginsburg:

Mr. Starr, can I take you back to the beginning of the 60(b) motion, because you seem to have shifted ground?

The 60(b) motion as presented to the district court said that this new law passed by the Arizona legislature, 2064 —

“2064 creates a plan for adequate funding of programs for the ELL students. “

That was the whole basis for the 60(b) motion, whether the new law was supplied adequate funding, and the Speaker of the House and the Senate intervened specifically for the purpose of defending the new law.

Your current argument is detached from the new law.

Kenneth W. Starr:

It is not detached, but our submission is, in fact, that we look to what the district court had before it in the 60(b)(5) hearing.

It had an eight-day evidentiary hearing.

It was not simply legal argument over that particular bill.

And that evidence–

Ruth Bader Ginsburg:

But that was the basis for the 64(b) motion, that 2064 provided adequate funding.

Kenneth W. Starr:

–Your Honor, there were a variety of points made, and the 60(b) submission was not limited to this new bill.

Rather, it was a totality of the circumstances, here are the changed circumstances.

That’s what the whole eight-day trial was about.

The eight-day trial was about what are the new funding mechanisms, what is happening on the ground in Nogales.

And as I say, even the Respondents’ own key witness said that there is an effective ELL program now in place, and that, in fact, progress–

Ruth Bader Ginsburg:

Do we — do we have the — the intervention application in the papers before us and the 60(b) motion?

Kenneth W. Starr:

–Yes, you do — you do have it before you.

Kenneth W. Starr:

And there is no question that the Speaker and the President were, in fact, submitting to the district court HB 2064 as part of the submission.

My point is the evidentiary hearing went much more broadly and here’s the key: Under the EEOA, all that is required under the Castaneda framework is, in fact, good faith efforts toward compliance.

The questions that are flowing suggest there has been no good faith effort at compliance, and there has been.

That’s what the eight-day hearing was all about.

That’s one of the things that Superintendent Cooper testified to and discredited.

David H. Souter:

Well, I — help me out then.

I thought the — the issue was not whether there had been any good faith attempt at compliance, but whether there were two deficiencies under the scheme, under the — I forget the statute — the new bill.

One deficiency was that it limited the funding for any given student subject to — to ELL — to two-year funding when, in fact, the evidence showed that you couldn’t get a kid up to par with two years of education.

The second deficiency was that the — that the State funds — strike that, I’m sorry — that Federal funds were being used to supplant what should have been a State responsibility rather than merely supplementing.

I take it that is simply a matter of degree, but that was the problem.

I thought those were the two problems, two-year funding, supplantation.

Am I — am I wrong?

So there was no — my point is that there was no denial that some good faith efforts had been made.

The finding was that there were two deficiencies and these were the two deficiencies; is that correct?

Kenneth W. Starr:

As — that is correct.

But as to the latter with respect to the Federal funds, supplant versus supplement, all that we have is — and this is an issue that is entrusted to the Department of Education.

It’s not trusted to the district courts under No Child Left Behind.

This is an apparatus that Congress has determined there should no longer be — not that EEOA doesn’t — it has its beachhead, it has its place, but now No Child Left Behind has a very elaborate process including a plan, and Arizona is in compliance with that plan.

The point is the HB 2064 points completely blinded the district court to what was actually before him, and we think that that is wrong.

John Paul Stevens:

Mr. Starr, how do you explain the fact the State of Arizona and the board of education are troubled by the same two points?

Kenneth W. Starr:

There is no question that there is disagreement within the house with respect to that.

But, Your Honor, there is no authority on the part of a Federal court under No Child Left Behind to render this kind of interpretation.

And it has blinded us — ultimately, it is irrelevant.

It has blinded us to the issue–

Ruth Bader Ginsburg:

Well, what is it — No Child Left Behind I thought has a specific saving clause,

“Nothing in this part shall be construed in a manner inconsistent with any Federal law guaranteeing a civil right. “

And the EEOA is such a law.

Kenneth W. Starr:

–That is correct.

The point that I am making is the interpretation of supplemental versus supplant is in fact one that is entrusted to the Department of Education.

We only have a letter.

Kenneth W. Starr:

That’s not final agency action.

But I want to return to what we think is the key in a 60(b)(5) hearing.

What is key in 60(b)(5) is to listen to the changed circumstances.

What are the changed circumstances?

And the Court blinded itself to these very important changes in terms of State funding–

Stephen G. Breyer:

What is the one State funding?

Because I looked at your brief, page 22 to 23, and if I understand it correctly it says that the educational expenditures, that is to say monies, increased in this Nogales and USD–

Kenneth W. Starr:

–Yes.

Stephen G. Breyer:

–maintenance and operation budget, by 30 percent.

Well, I’m sure they did.

But that’s I take it the entire maintenance and operation budget.

The numbers I had — and I am quite interested to know if they are wrong — the numbers that I have is that the only survey they’ve done across the State, or the most recent one, says that the English language instructional costs range between 1570 and $3300 per pupil.

And then if you look at the amount the State provides outside of the reading, writing and arithmetic, which they provide, et cetera, for all students, what they provide is — currently it’s $340, and if that law had gone into effect, 2064, it would have been $450.

Now, are those numbers totally wrong?

Kenneth W. Starr:

The numbers are not wrong, Your Honor, but the numbers are in fact not the pivotal point.

The EEOA is not a funding statute, and let me come to the specific point of cost studies.

The State of Arizona did in fact seek to undertake a statewide cost study.

And our — one of our fundamental problems here is this case is no longer about Nogales.

It has been expanded.

Even though it was a class action limited to Nogales, it has been expanded to include an intrusion into the prerogatives of the State.

Ruth Bader Ginsburg:

That was the fault of the Arizona attorney general, who told the court: You cannot deal with Nogales alone because under the Arizona Constitution the — all — all the school districts have to be treated equally.

So, it wasn’t the plaintiffs that initiated that move to make it statewide; it was in fact the Arizona attorney general.

Kenneth W. Starr:

And we are now seeking relief from that, because what we now know–

David H. Souter:

Well, it should — has the state law changed?

Kenneth W. Starr:

–What has changed–

David H. Souter:

I mean, the reason — the reason for getting into this is that the State required it.

Has the State law changed?

Kenneth W. Starr:

–The State law does not require specific earmarked funding, district by district, and here’s the key–

Antonin Scalia:

–I assume it’s–

David H. Souter:

No, we are not talking about — I’m sorry.

Antonin Scalia:

–I also assume the State law does not require that any — any judicial decree with respect to a particular district be expanded to the whole State.

It seems to me you could comply with the State Constitution.

If and when a judgment is rendered as to the district, it would then be, under the State Constitution, the responsibility of the State executive to make sure that the other — other districts are equalized.

But why the attorney general had to come into the Federal court and say, do it to the whole State, because the whole State has to be equal, I — I can’t understand that, to tell you the truth.

Kenneth W. Starr:

–It’s why the district court should have been on guard–

David H. Souter:

What is the district court supposed to do?

The attorney general for the State comes in and says, do it this way.

It seems to me that the State has no standing later on to say: Oh, gee, the district court should have said: Sorry, Mr. Attorney General; you don’t know anything about your State law; we won’t do it this way.

Kenneth W. Starr:

–Your Honor, we are not trying to relitigate the original judgment.

We quarrel with it, but that’s not why we’re here.

We’re here–

Antonin Scalia:

The fact is he wanted to be thrown into the briar patch, didn’t he?

Kenneth W. Starr:

–It was–

Antonin Scalia:

The State attorney general wanted the decree.

Kenneth W. Starr:

–There is — there is no question that there was a division of the opinion within the State and that in fact the attorney general was essentially siding with the plaintiffs in their litigation.

There is now a very different perspective and you have that before you, that the governor who controls the litigation in the State is the chief executive of the State in terms of determining what the State’s position is–

Anthony M. Kennedy:

Could you tell me what your submission is with respect to the error you see in the findings and the order made after the eight-day hearing?

First, are you saying that after No Child Left Behind that the duty of the State with respect to educating the students who have a different language was less onerous?

Kenneth W. Starr:

–No, it’s not less onerous, but there is a different methodology and a different approach.

Anthony M. Kennedy:

All right.

And are you saying that because of that methodology any remedy based on funding is no longer appropriate?

Kenneth W. Starr:

A funding remedy is in fact inappropriate presumptively statewide.

That is our key submission, because of the variation in costs, district by district.

Anthony M. Kennedy:

If we could — is it valid as to Nogales, if we focus just on Nogales?

Kenneth W. Starr:

Not in terms of changed circumstances, because of what has in fact happened on the ground.

Namely, one of the thing when we go back to the original order–

John G. Roberts, Jr.:

You lost me.

Anthony M. Kennedy:

Are you saying — are you saying that the order the district court gave with respect just to Nogales–

Kenneth W. Starr:

–Yes.

Anthony M. Kennedy:

–is inappropriate because it used a funding remedy or a funding measure of compliance when it should have used blank, and then fill in the blank?

Kenneth W. Starr:

Yes.

It should have simply determined under Castaneda the three-part test.

It should not have said the EEOA requires a particular level of funding.

That’s precisely what Castaneda–

David H. Souter:

But that isn’t what it — I don’t understand that it has ever said that.

I thought the funding point was basically this: You, Nogales, have come up with plan A.

You have come up with funding B.

Funding B is not enough money to fund plan A.

It is your plan, you’ve got to fund your plan.

That is not saying that the Federal statute requires a particular level of funding.

It’s not saying that the district court can take over the responsibility of deciding what is appropriate funding in a school district.

It’s simply saying,

“If you choose plan A, you have got to pay for plan A. “

Kenneth W. Starr:

–And–

David H. Souter:

Am I — am I wrong?

Did it ever go beyond that?

Kenneth W. Starr:

–It did go beyond that in this sense.

It did not in fact determine whether in fact there was an effective program in place.

That’s the oddity about this case–

David H. Souter:

In other words, it should have said: Before I decide whether your funding for plan A is good enough, I have got to decide whether plan A itself is worth anything?

I mean, I have got to evaluate plan A?

Kenneth W. Starr:

–No.

The difficulty is seeking to enforce a specific funding order, and particularly statewide, which intrudes–

David H. Souter:

All right.

Let’s go back to Justice Kennedy’s point a moment ago.

Let’s just talk about Nogales for a minute.

With respect to plan A, that was Nogales’ plan.

And the district court said: You can’t fund that plan with the amount of money that you have appropriated.

Did the district court go beyond that with respect to Nogales?

Kenneth W. Starr:

–The district court failed to note that plan A had changed.

Kenneth W. Starr:

There was no longer a plan A.

It was strategic English immersion which has an entirely different methodology.

And what it also–

Ruth Bader Ginsburg:

But that came in in 2000 and this case was going on for, what, eight, nine years before there was ever an argument.

I mean in all of these orders that were not appealed, don’t those judgments, unappealed judgments, settle anything?

Kenneth W. Starr:

–Of — of course.

They let that judgment stand during that period of time.

But the whole purpose of 60(b)(5) is relief from finality.

It’s a–

Antonin Scalia:

Yes, but didn’t — didn’t the court — you say plan A is no longer in effect; they have a new plan under the No Child Left Behind Act.

But didn’t the — didn’t the district court find that the funding for that plan is inadequate, for the two reasons that were mentioned earlier?

Kenneth W. Starr:

–Well, it said that — here is what the court held: That it has developed a significantly improved infrastructure for ELL programming, but it has not complied with the original judgment.

That is our complaint.

The original funding judgment was in fact informed by a different methodology and a different set of circumstances.

For example, Superintendent Cooper comes in and says: I don’t want to spend money on teachers’ aides; they are standing in the way.

Yet the Respondents say: We need money for teachers’ aides.

That’s part of No Child Left Behind.

Inputs — now we look at — we test, we determine what progress is being made and, we are requiring progress to be made.

Ruth Bader Ginsburg:

I didn’t think there was in the district judge’s declaratory judgment, spend this much on teachers aides, that much on the other.

It was: You need a plan and you have to figure out how much it costs, and then you have to appropriate money that matches the cost.

But the district court — I may be wrong about this, but I thought that the original declaratory judgment didn’t try to tell them what the components of that plan had to be.

Kenneth W. Starr:

You are precisely right, but the point I’m making is that the objects of that underlying decree shifted by virtue of the new methodology that was in fact adequately funded through a whole variety of funds.

The funds that Justice Breyer has referred to are only part of the basket of funds that have been made available.

David H. Souter:

No.

But doesn’t it — doesn’t it — don’t we come back to Justice Scalia’s question of a moment ago?

Even with the — the changed plan to immersion, isn’t the finding that two years of funding per child is not enough?

And you are supplanting, not supplementing.

Isn’t that still the problem?

Kenneth W. Starr:

We believe not.

We believe that ultimately those two issues are irrelevant to the issue that is before the Court.

David H. Souter:

But those are the issues that the court focused on; are they not?

Kenneth W. Starr:

Wrongly, because that’s — that’s part of our quarrel, that the district court simply focused on these two elements of HB 2064, and blinded itself to the evidence–

Stephen G. Breyer:

There is a minor thing that I — I think — I’m not sure that Justice Ginsburg said.

I thought that the funding order was not fund the plan you come up with; but rather, come up with a funding plan that bears a rational relationship to — to the plan you come up with.

So is that right?

Kenneth W. Starr:

–That is correct, and that is–

Stephen G. Breyer:

All right.

And now the district court is at considerable remove.

He says they have not yet come up with a study and a plan that seems satisfactory, and they haven’t shown how the funding is rational in relation to the plan that they haven’t fully developed, though they’ve made progress.

That’s where we are — is that where we are?

Kenneth W. Starr:

–Three brief points.

On the study, the State did undertake a study, and this is in the record.

And the National Conference of State Legislators said: We throw up our hands because we can’t do this statewide.

I would invite the Court to refocus on Nogales as a district versus statewide.

What was entered here in this order, which makes it so extraordinary, is that the entire State funding mechanism has been interfered with by the order.

This case started out in Nogales.

And so the statewide study was in fact undertaken.

But we could not do it.

The National Conference of State Legislatures said: We throw up our hands.

We can do a local study, and it was done.

And if the Court refocuses on the various tranches of funding, including in Nogales itself and from the State, one will see that there has been a very substantial increase in the actual funding as well as progress.

Antonin Scalia:

Well, I — I agree with that.

I think it was a vast mistake to extend a lawsuit that applied only to Nogales to the whole State, but the State attorney general wanted that done.

Kenneth W. Starr:

But we should be able now to–

Antonin Scalia:

But that’s — that’s water over the dam.

That’s not what this suit is about now.

Kenneth W. Starr:

–No, Your Honor, not under 60(b), and this Court has warned about the ability of State officials–

David H. Souter:

What has 60(b) got to do with the question of whether the attorney general represents the State before the court?

If the attorney general comes back into court and says, no longer do we want this statewide, then you’ve got an issue.

If the — if the attorney general speaking for the State does not do that, then I don’t see why Justice Scalia’s point is not the answer.

Kenneth W. Starr:

–Not under Arizona law.

It is the governor who speaks and the attorney general is beholden–

David H. Souter:

So the district court is supposed to referee a fight between the governor and the attorney general at this point?

Is that what’s going on?

Kenneth W. Starr:

–No, Your Honor.

The district court is to listen to what the State has to say through — once the legislature was fine.

It was brought in.

It should have listened to the–

David H. Souter:

Doesn’t the attorney general speak for the State?

Kenneth W. Starr:

–No, Your Honor, not in Arizona.

The attorney general speaks for the State when the governor directs him or her to do that.

Ruth Bader Ginsburg:

But he was speaking alone for years and years, and 60(b) — and it has been said over and over again — is not a substitute for appeal.

What wasn’t appealed was that Arizona is required by Federal law to determine the cost and adequately fund a statewide system of English acquisition programming.

Antonin Scalia:

Which would be good enough to fix Nogales.

So you are quite right.

There is a vast difference in each district.

But that attorney general wanted enough money to fund the whole State the way you have to fund to — to fix Nogales.

That’s what he wanted.

Kenneth W. Starr:

And former officials shouldn’t continue to be able to bind the State.

I would like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Srinivasan.

Sri Srinivasan:

Thank you, Mr. Chief Justice, and may it please the Court: When the district court issued its initial judgment in 2000, what the court found was that there was a systemic violation of the EEOA.

And the court further found that the program deficiencies were the result of the lack of funding rationally related to the programs.

Antonin Scalia:

Can I ask whether the requirements of the EEOA are at all affected by Congress’s later enactment of the No Child Left Behind Act?

I mean, you know, it’s a very vague requirement that you make a good faith effort to — to provide language assistance to children.

Why shouldn’t the courts decide that what constitutes a good faith effort is pretty much what Congress thought was necessary in the — in the No Child Left Behind Act, and if you comply with that, you are doing okay?

Sri Srinivasan:

Justice Scalia, just one point of clarification on — in our view on what the EEOA requires, and then I will address the No Child Left Behind point.

The EEOA doesn’t really require good faith efforts.

It requires efforts that are in fact reasonably calculated to overcome language barriers.

Antonin Scalia:

Okay.

I would call that good faith, but that’s fine.

Sri Srinivasan:

With that — With that clarification, thank you.

Antonin Scalia:

That’s fine.

Sri Srinivasan:

With that clarification on the question of whether No Child Left Behind sets the standard for compliance with the EEOA, which is, I think, what the petitioners’ position is, we think the answer is no for two fundamental reasons.

First is just a textual point.

The text of No Child Left Behind doesn’t say anywhere that it displaces the standards for compliance with the EEOA.

Samuel A. Alito, Jr.:

I don’t think that’s their argument, counsel.

I don’t think that it is their argument that No Child Left Behind supplants the earlier act.

It is simply their — their argument is that it informs an interpretation of the language of EEOA, which is that the State is required to take appropriate action, which is a very vague standard.

Sri Srinivasan:

I think their argument at the end of the day, Justice Alito, is that if you comply with No Child Left Behind — and I will get to in a moment what compliance with No Child Left Behind can mean — then you have necessarily complied with the EEOA.

That compliance with the No Child Left Behind sets the standard for compliance with the EEOA.

And I don’t think that is workable particularly when you take into account what petitioners mean by

“compliance with No Child Left Behind. “

Samuel A. Alito, Jr.:

Can I ask you this question about the Ninth Circuit’s decision, which is what we are reviewing?

Suppose — I know there — there is a debate about how well Nogales is doing at this time.

But let’s suppose Nogales came in, and they said this: We had plan A back when this was originally litigated, and now we have an entirely different plan, and this plan doesn’t cost one penny more than what we were spending in 2000.

But it is a very good plan, and it has produced very good results.

As I read the Ninth Circuit’s decision, they would not grant relief from the judgment under those circumstances, because they focus exclusively on incremental funding for EEL programs and Arizona’s funding model.

Isn’t that correct?

Sri Srinivasan:

Well, I — I don’t know that that is a correct interpretation of the EEOA.

What we would say is that if the State came forward with a showing that completely regardless of funding the programs on the ground work, well, that would be something that the district court would have to take into account.

But the state hasn’t–

Samuel A. Alito, Jr.:

No, but isn’t — that isn’t really my question.

Isn’t — isn’t it the case that the Ninth Circuit judged the — the permissibility of relief under 60(b) solely with regard to incremental funding and Arizona’s funding model?

Sri Srinivasan:

–The Ninth Circuit focused on funding, Justice Alito, because that is the way the case has been litigated from the outset.

And that’s the way the State has said from the outset that it would achieve compliance with the–

Samuel A. Alito, Jr.:

That’s the way it was litigated originally, but I thought the whole focus of the motion for relief from the judgment was: We have a new plan, and it is not tied to funding, and it will produce good results without looking at incremental EEL funding.

And wasn’t the Ninth Circuit obligated to look at that?

Sri Srinivasan:

–Well, I think the Ninth Circuit was — was required certainly to review the district court’s inquiry into that.

Sri Srinivasan:

And what the district court found is at page 100-A of the appendix to the petition filed by the legislative intervenors.

And what the district court found there is that the improvements today, although significant, failed to reach the high school; that they were fleeting.

And — and this is particularly significant.

In addition, the district court also explained that it was premature to make an assessment of many of the changes, because many of the new standards are still evolving.

And the reason the district court said that is that — is because of the enactment in 2006 of Arizona HB 2064, which changes the framework for administration and funding of ELL programs in a way that I think fortifies the district court’s denial of complete dissolution of its judgment and — and ensuing orders.

John G. Roberts, Jr.:

But I guess, as I understand Justice Alito’s question, if the prior order is based on funding a particular plan and the State comes back and says, this is a new approach.

It could be for any number of reasons, and say that, you know, the plan is not working, or there have been other budgetary crises in the State that strain what we can afford to spend on this particular program.

Here’s another plan.

The funding levels are different.

You should look at it.

Sri Srinivasan:

Yes, that–

John G. Roberts, Jr.:

What’s wrong with that?

Sri Srinivasan:

–There is nothing wrong with that, and it should be looked at.

And the district court did look at it, and what the district court found was that the claims of progress, although there had been progress, the progress hadn’t reached the high school.

The progress was fleeting and that it was premature–

John G. Roberts, Jr.:

It’s not a question of progress; it’s a question of the plan and the approach.

And I understood the Ninth Circuit — I’m looking at page 72a — it talks about the ELL’s specific funding that was based on the prior order.

And what I understood the State’s submission to be — look at what the superintendent has done in this particular case, and so on, so that those specific funding levels aren’t applicable.

And I would have thought it an extraordinary enough thing for a district court to tell a State legislature: Pass this budget, and you, Legislature, pass it, and — I guess — you, Governor, sign it, or you are not going to be in compliance.

And if they’ve come up with a different way with different funding requirements, I don’t know why that’s not a changed circumstance that justifies looking at the judgment–

Sri Srinivasan:

–Well, the district court didn’t issue that sort of order.

And — and the Ninth Circuit — if you look at page 66a — it did review the evidence in the record and fortified the district court’s conclusion that the new plan, Your Honor, Mr. Chief Justice, that was presented, which is to the effect that, regardless of funding, we have made advances based on management improvements that should satisfy the statute.

That was the claim that was made by Petitioners.

I think that’s what you’re alluding to.

And the district court rejected that at page 100a, and the Ninth Circuit fortified the district court’s rejection of it by looking at the evidence in the record concerning–

Antonin Scalia:

What — what page is this?

Sri Srinivasan:

–It’s at 66a.

That the court of appeals reviews the testimony and fortifies the district court’s conclusion that, based on the advances to date, there’s still work left to be done.

Because at the end of the day you have to have a plan in place.

John G. Roberts, Jr.:

–Well, I don’t think the State — I didn’t understand the State to disagree that there’s still work to be done.

John G. Roberts, Jr.:

I thought that the plan — the point was that their approach had changed, including by No Child Left Behind, that they don’t have to reach the same specific funding levels that the district court order required.

And what I understood the Ninth Circuit to say is, no, those specific funding levels are still in place.

Sri Srinivasan:

Well, there’s two fundamentally different assertions being made by Petitioners, if I understand it: One is what Justice Scalia alluded to earlier, which is that No Child Left Behind changed the legal landscape in a way such that compliance with No Child Left Behind, such as it is, sets the standard for compliance with the EEOA.

Now, there’s a distinct argument that’s also being made which is that conditions on the ground have improved as a consequence of management improvements.

Regardless of No Child Left Behind, this is a factual argument, that factually things have changed in a way that ought to let us from underneath the district court’s supervision.

Now, the — they are different points, and I think the district court addressed both of them.

With respect to the second one, where there is the facts on the ground, what is critical is that, in order to justify complete dissolution in a case like this, the Petitioners would have to show, not only that conditions have improved, but they have improved in a way that is durable and sustainable over time.

And the district court–

Antonin Scalia:

What degree–

Sri Srinivasan:

–doubted that.

Antonin Scalia:

–What degree of improvement do you think is necessary?

Do you agree with the Ninth — the Ninth Circuit says,

“We cannot say the district court clearly erred when it found this burden was not met. “

“A district in which the majority of ELL tenth graders failed to meet State achievement standards while the majority of native English speakers passed is not one whose performance demonstrates that the State is adequately funding ELL programs. “

Do you really think that you haven’t complied with adequate funding of ELL programs until you raise all of the ELL students up to the level of native English speakers?

Sri Srinivasan:

No, I don’t think the EEOA requires raising everyone.

I think it requires–

Antonin Scalia:

Well, that’s all this says.

The majority doesn’t–

Sri Srinivasan:

–Well–

Antonin Scalia:

–doesn’t meet the — a majority of ELL tenth graders fail to meet the standards, but the majority of native English speakers do.

Sri Srinivasan:

–Well, that’s part of what it says, and I think what the Ninth Circuit is also alluding to with respect to the high school in particular that, if you look at State survey that Petitioners rely on in — in touting the improvements in certain schools, it also with respect to the high school shows that the two high schools in Nogales was ranked — were ranked at the very bottom of the survey for ELL students.

So there’s problems on the ground, but what the district court focused on concerns the enactment of 2064, which is that no matter was think about the improvements that have — that have been made to date, the landscape fundamentally shifts upon the enactment of 2064 because the administration and funding of ELL plans changes at that point.

And it’s–

Ruth Bader Ginsburg:

That’s the new plan that we’re talking about, is 20 — there have been references — well, now they have a new plan.

Does everybody agree at least that the new plan is 2064?

Sri Srinivasan:

–I — I think we would agree because that sets the charter for provision of programs to ELL students going forward from its enactment.

That’s the infrastructure from — from here on out.

And that — there’s three particular features of that that I think are significant and that fortify the district court’s conclusion that complete dissolution was unwarranted.

The first is the one that was raised by Justice Souter, which is that whatever you think of the progress that has been made to date — and the district court found that, while it was significant, it didn’t suffice — that changes from what can be brought to bear from here on out as half the resources that were available before, because that’s the net effect of 2064.

Sri Srinivasan:

That’s what the district court found, at pages 107 to 108a of the Petition Appendix.

And when you have half resources to work with — at the very least I think what the district court thought in saying that it was premature to make an assessment is that we have to have some period to assess what happens on the ground as a consequence–

John G. Roberts, Jr.:

Is there any–

Sri Srinivasan:

–of this new funding recipe.

John G. Roberts, Jr.:

–Does — then does that stay true without regard to what is happening economically to the State?

In other words, the district court can say: 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 that everybody’s experiencing lately.

Sri Srinivasan:

No, the — the district — the State would have to present that, Your Honor, and I don’t believe the State to have done that so far.

But the State would have to make the argument that funding constraints are inexistence in a way that doesn’t allow us to — to use one example — to — to put together an optimal program, and so here’s the program that we want to put in place in–

Antonin Scalia:

Counsel, I–

Sri Srinivasan:

–jurisdictions.

Antonin Scalia:

–I find it bizarre that we are sitting here talking about what the whole State has to do on the basis of one district which is concededly the district that has the most nonnative English speakers and has been a problem district all along.

And we are saying whatever this district court says for — for this school district applies statewide.

Now, that is bizarre.

Sri Srinivasan:

Well–

Antonin Scalia:

And the mere fact that the State Attorney General acquiesced in that kind — kind of a system at the outset, does that force us to still accept at this time that whatever is — is necessary for Nogales is also necessary for the entire State?

Sri Srinivasan:

–Justice Scalia, I think that that issue becomes largely an academic one for the following reason: that the reason that the State Attorney General made the acknowledgment that he did is that, under the Arizona State Constitution, funding decisions don’t vary from district to district.

So whatever funding menu is put into place in order to achieve compliance with the EEOA with respect to Nogales is going to be the same one that exists throughout the State.

Antonin Scalia:

I’ll let–

Sri Srinivasan:

It’s–

Antonin Scalia:

–I’ll let Arizona worry about that.

It’s — it’s another matter to have a district court decree that the whole State has to do this thing.

And whether — whether it’s done equally or not would be a matter for the State courts to determine, instead of for this district judge to determine, right?

Sri Srinivasan:

–Well, it could be, but I don’t think there’s really much of a dispute that the statewide funding measure doesn’t really affect what the State’s going to do in this case, because–

Anthony M. Kennedy:

Well, it seems to me very odd that — assume you have a constitutional provision which says funding must be equal in each district.

Then you find one district that’s way behind, and that is, we will assume, is — has been deficient in — in providing language education.

You are saying that if the court orders more money spent for that district, it must automatically order money — additional money for every other district in the State?

Sri Srinivasan:

–No, absolutely not.

Not — certainly not in the abstract.

Anthony M. Kennedy:

But — yes, but that seems to me the necessary conclusion of your argument in the answer you gave Justice Scalia.

Sri Srinivasan:

I don’t think it’s a necessary conclusion of my argument, Justice Kennedy.

Sri Srinivasan:

I think it’s a conclusion that rests on we are in this litigation in this particular context, given the Arizona Constitution’s uniformity clause.

It’s as a consequence of that clause that this issue even arises.

And I think the Attorney General–

Anthony M. Kennedy:

But, again, what you’re — you’re saying that any time a district court in a single district orders more money to remedy a constitutional problem, that because of that clause it has to apply to every other district.

That just can’t be.

Sri Srinivasan:

–Well, if the–

Anthony M. Kennedy:

And if — and if it is, then that is a very good reason for the district court to cede its jurisdiction to the State authorities.

Sri Srinivasan:

–Well, if the litigation had come up in a different way, Justice Kennedy, such that it had always focused exclusively on what happened in Nogales, including the funding aspect of the case, but I think what would have been appropriate is that the district court would have inquired about what funding resources belong to Nogales in particular.

And then what would have happened by operation of State law would be that, whatever the funding calculus with respect to Nogales, it would automatically apply across the State because of the Arizona Constitution’s uniformity clause.

Now, in this case, the litigation — the complaint was assessed against the entire State, and the Attorney General accepted that, and I don’t think at this point in time we can revisit that, particularly when it’s largely an academic question given the uniformity clause–

John G. Roberts, Jr.:

But I gather it’s often the case in institutional litigation of this sort that the political figures, whether it’s the Governor or the Attorney General, can’t go to the voters say, look, we should spend more money on this.

So they go to the district court judge and say, make us spend more money on this.

And they get the same result they’d wanted in a non-democratic way, particularly when there’s a division, such as here the legislature doesn’t want to do something, and the Governor or the Attorney General does.

So why should we put a lot of weight on what the representation is when we are at least concerned that it might be a — I don’t mean it in a pejorative sense — but a collusive piece of litigation?

Sri Srinivasan:

–Well, two points, Mr. Chief Justice, and first — and I don’t mean to quibble, but the Attorney General did contest the litigation at the outset.

What happened is, after a judgment was issued against the State, then I think there was an acquiescence in the–

John G. Roberts, Jr.:

Well, it’s hard for the Attorney General to get funding from the legislature for all he wants to do, and this is a way for him to get it, to go to the legislature and say look, you don’t have a choice.

Sri Srinivasan:

–Well, sure, Mr. Chief Justice, but I think what the Court did in both Rufo and Frew is it accommodated those concerns, and it accommodated the interest in finality that comes from judgments, and the interests in allowing a different set of State officials to suggest new programs to make that suggestion to the district court.

And it accommodated those in a way that requires a showing at the outset that there has been a significant change in facts or a significant change in law.

And on–

John G. Roberts, Jr.:

Can I ask just a question that was confusing to me?

What standard for changed circumstances do you understand the Ninth Circuit to have applied?

Sri Srinivasan:

–The one that was outlined by this Court in Rufo.

John G. Roberts, Jr.:

Which is?

Sri Srinivasan:

A significant change of facts or a significant change of law.

And the–

John G. Roberts, Jr.:

I am looking at page 72a of the Ninth Circuit opinion, and the standard they use there is radically changed, not significantly changed.

Sri Srinivasan:

–Well, on page 49a they invoke the precise wording of this Court, cite Rufo for that proposition, and also–

John G. Roberts, Jr.:

So, if we have a — if we are confused as to which standard they applied, because at one point they say significantly changed and at another point they say radically changed, what should we do?

Sri Srinivasan:

–Well, I — I would give effect to the articulation of the standard in the standard review question section of the opinion.

Sri Srinivasan:

Of course you could remand if you felt that it was necessary, but I think the reason why the Ninth Circuit uses the language such as Your Honor found in 72a is that it has to be considered in the context of the nature of the violation and the nature of the relief sought.

The violation was a systematic one; the relief sought is a complete dissolution of the judgment and ensuing order, and in that context I think it is fair to say that what is significant is more significant than what would be the case in — for example, in Rufo, where what was sought was a relatively modest modification of the consent order concerning whether you would have single bunking or double bunking.

Now on the question of whether there is in fact a significant change or significant change of facts or significant change in law, on No Child Left Behind, Justice Scalia, to return to the question that you asked, the reason that No Child Left Behind in our view doesn’t displace the standard for EEOA is that Petitioner’s standard is that as long as the State has an approved No Child Left Behind plan, which is true of all 50 States, that they necessarily satisfy the EEOA; and what that would mean is that even if a State didn’t implement that plan, even if the State didn’t — didn’t — didn’t have accountability measures that it in fact followed, that required school districts to achieve the annual measurement of progress that would be laid out in the plan — notwithstanding all of that, a plaintiff would lack authority to come into the court and litigate his private cause of action under the EEOA and get a court order that requires the State to take appropriate action–

Antonin Scalia:

Right but–

Sri Srinivasan:

–simply because the State will have had an approved plan.

Antonin Scalia:

–I understand that.

You could get the plan approved and then not fund it.

But at least the additional funding demanded by the district court should be whatever additional funding is necessary to comply with the No Child Left Behind Act.

Right?

Sri Srinivasan:

I — I don’t think so.

Because–

Antonin Scalia:

Well, then — then it’s not as simple as you made it.

Of course, I agree with the fact that if you get approved under the No Child Left Behind Act and then don’t fund it, of course that — that won’t satisfy your obligation.

But if you have gotten approved, the test for whether you are satisfying your obligation should be how much money would it cost to implement the program that you have gotten approved under the No Child Left Behind Act.

Sri Srinivasan:

–The — the No Child Left Behind Act doesn’t — it doesn’t approve a particular program.

What it imposes are voluntarily accepted funding conditions, and that includes–

Antonin Scalia:

It doesn’t approve programs?

Sri Srinivasan:

–No–

Antonin Scalia:

I thought the States had to submit a program.

Sri Srinivasan:

–What the EEOA concerns are programs that are reasonably calculated to achieve overcoming language barriers.

Antonin Scalia:

Right.

Sri Srinivasan:

What No Child Left Behind concerns is, is there a testing program in place that calls for certain improvements in testing over time.

As long as the plan describes the tests that will be taken and the progress that will be achieved or sought to be achieved over time, a plan will be approved.

Now, even if the State doesn’t achieve the plan — the progress that is called for by No Child Left Behind–

Antonin Scalia:

So you are saying you can’t calculate costs.

Sri Srinivasan:

–Right.

Antonin Scalia:

You cannot calculate costs under the plan approved by the Secretary–

Sri Srinivasan:

I–

Antonin Scalia:

–because all the plan is is testing.

Sri Srinivasan:

–Right.

Sri Srinivasan:

It’s about tests.

Antonin Scalia:

Okay.

Sri Srinivasan:

And even if you don’t make the progress — and if I could finish this one point, Mr. Chief Justice.

And it bears noting that the Nogales the progress called for No Child Left Behind hasn’t been made in the last two years, according to the superintendent’s web site.

Even if you don’t make that progress, there is no way under Petitioner’s approach to vindicate the EEOA cause of action to obtain appropriate action.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Saharsky.

Nicole A. Saharsky:

Mr. Chief Justice, and may it please the Court: It’s important to recognize what Petitioners asked for here at the rule 60(b)(5) stage.

That was complete dissolution of the court’s immediate orders.

It was not to just limit those orders just to Nogales; it was not to improve — or to approve improvements in Nogales as an interim measure.

As a result, the burden was on them to show either full compliance with the orders the district court had entered or material changed circumstances that made compliance unnecessary.

Ruth Bader Ginsburg:

But couldn’t the district court give them the relief to which they were entitled even if it was less than what they sought?

Nicole A. Saharsky:

Certainly.

But they didn’t demonstrate that — entitlement to that relief either.

To the extended we are talking about the question of whether conditions had changed in Nogales that there was no longer an ongoing violation of Federal law, the district court held an 8-day evidentiary hearing, and it made factual findings showing that the problems had not ceased in Nogales.

And as you noted, Justice Ginsburg, this changed circumstances argument that is now heavily relied upon by Petitioners was not the primary thrust of their argument before the district court.

The primary thrust of their argument was that HB 2064, which is the State’s scheme for ELL education, had some serious — would — would satisfy the judgment; and their other argument was that No Child Left Behind completely preempts — that was the language they use — completely preempts and renders obsolete the EEOA.

John G. Roberts, Jr.:

Counsel, when you were starting out I heard you articulate a third standard, materially changed.

What is your understanding of the standard applied by the Ninth Circuit?

Was it materially changed, significantly changed or radically changed?

Nicole A. Saharsky:

I understand it to be significant change, which, I don’t see significant and material as being all that different.

I think that the–

John G. Roberts, Jr.:

Well, I don’t either but I see both of them being different from radically changed.

Nicole A. Saharsky:

–Again, I think if you look at the Ninth Circuit’s opinion, particularly where it starts out with the standard of review, it cites this Court’s precedents in Rufo and Agostini; it talks about the need for significant changed circumstances.

I understand that there are portions of the Ninth Circuit’s opinion that say — that have the radical change language, and again, I — I think that that language is — just reflects the arguments that Petitioners were making, that they wanted complete relief from these remedial orders and that, you know, the underlying judgment here was a systemic violation.

I mean, it’s–

Anthony M. Kennedy:

Did the district court on the 8-day hearing on remand make a finding that its incremental funding determinations that it had made earlier were an accurate way to measure compliance and to insist on compliance under the new immersion program?

Nicole A. Saharsky:

–If I understand your question correctly, and please correct me if I don’t, but the district court considered two different arguments.

The first was under House Bill 2064 which considered to have — which continued to have this incremental funding.

Nicole A. Saharsky:

It’s that we have two problems with House Bill 2064, which were the two-year cutoff and Federal funding problem.

On the second question which — the second argument Petitioners made which said, everything is fine in Nogales because we have money from other funds, the district court said no, there’s — there’s been an ongoing violation of Federal Law.

You haven’t met your burden of showing me that violation ceased because things aren’t better in Nogales.

Do–

Samuel A. Alito, Jr.:

Why does it matter that there is — why focus on incremental funding for ELL programs exclusively?

What difference does it make where the money comes from — where it comes from, putting aside federal money that can’t be supplanted?

I just don’t understand that.

Nicole A. Saharsky:

–I think the reason the district court was focused on that because that was always the State’s position that, in terms of the statewide scheme, that that is how they were going to fund ELL education.

Now it — and so the State was always, from 2000 up to the time of the district court’s rule 60(b) hearing, going down this path whereby it would put in place an ELL program and then give this amount of funding–

Samuel A. Alito, Jr.:

Well, that may have been their — that may have been their position originally, but at the time of the 60(b) hearing, what difference does it make whether the money came from funds that were designated for ELL program, or from general State funds, or from county funds?

What difference does it make whether the money was taken from some other program that the school was operating?

Suppose they fund — they take the money for the ELL programs from money that was previously used for music instruction, or art, or gym, or teaching German or anything else.

Now those may all be bad things, but what does that have to be with the EEOA?

Nicole A. Saharsky:

–Well, the district court could have found that the plan had changed and that funding could come from — from different places.

That’s right, if the State had changed its plans or that Nogales otherwise would have sufficient funding from circumstances that — or from other source, that would be one thing.

But the district court found that Nogales doesn’t have that funding from other sources.

For example, it can’t use the federal funding that it — that the Petitioners claim could be used to solve its problem under the EEOA.

There are specific conditions on federal grant programs that forbid that.

It also could not raise any significant amounts of funding through county tax overrides, which was another source the Petitioners had said would — would provide sufficient funding.

So the question the district court had to ask is, there has been an ongoing violation of federal law, has that violation of federal — federal law ceased because the State has put in place, Nogales has put in place programs that are reasonably calculated to help these kids learn English?

And the district court said Nogales has cobbled together these sources of funding.

And it is doing the best they can.

Samuel A. Alito, Jr.:

But the fact that you keep talking about the district court emphasizes my concern about the decision of the Ninth Circuit, which is what we are reviewing.

And as I read the decision of the Ninth Circuit, they focused exclusively on incremental costs associated with ELL programs and the educational funding model that the State had at that time.

Nicole A. Saharsky:

With respect, I don’t think that that was their exclusive focus.

I understand that it was a primary focus of that decision, and the reason for that was because the primary argument–

Samuel A. Alito, Jr.:

Well, they say.

They were required — the Petitioners were required to demonstrate either that there are no longer incremental costs associated with ELL programs in Arizona or that Arizona’s funding model was so altered as to make incremental costs issue relevant.

That was their explanation of the holding, 60 — 63A of the Speaker’s appendix.

Nicole A. Saharsky:

–That’s right.

Nicole A. Saharsky:

And what I understand that to mean is that they were required to either show compliance with the judgment which was that they would put together a plan that funded ELL education based on incremental costs or that the State was going to go down a different path and come up with the funding some other way, and that would result in a program reasonably calculated to help ELL students learn English.

And the district court found there were neither and the court of appeals found there were neither.

And the court of appeals did go through the alleged changed circumstances, and Nogales had issued a 91-page opinion that talked about the significant resource constraints that still exist in Nogales and the persistent achievement gaps that still exist in Nogales.

John G. Roberts, Jr.:

I still have trouble with the idea of district courts ordering State legislatures to fund it.

Isn’t the preferable approach for the district court to say you have a violation, you have to fix it, and I’m going check to see if you fixed it at particular intervals?

And it’s up to you, the State, to determine how you are going to fix it.

And the State might change its mind.

They may start out by saying we have got all of this extra money and that’s how we will fix it.

Then there is a budget crisis, the kind that we are familiar with, and he says we can’t the money, we are going to do it some other way, and here’s the way.

But that’s kind of the judgment of the State, not for the district court.

Nicole A. Saharsky:

And I think the district court was appropriately differential to the State throughout this litigation.

You will note at the time of the 2000 judgment that the district court didn’t put any remedial order in place.

And that’s because at the time of trial the State said, look, we are going to put in place an ELL program that everyone in the State can use and figure out how much it costs, what works and what doesn’t.

We are going to do a cost study, so please let us do the cost study and we will come back to the court.

And the district court said fine.

And ten months later that didn’t happen.

Now, there was a change, as Petitioners note, to a different theory of ELL education, structured English immersion and the court said, okay, do your program based on structured English immersion and just tell me how much it costs, tell me how you rationally fund it, and that will be fine.

The district court here did not want to be in the business of micromanaging State education.

Through this entire litigation the district court was–

John G. Roberts, Jr.:

Why does it order then — why did its order specify and be linked to the termination of the legislative session, and say you have 12 days left in the session and that’s how many days you have to enact this budget?

Nicole A. Saharsky:

–I think it’s because the State kept coming back to the district court and saying that the legislature had asked for this cost study, there was an interim bill, House Bill 2010, where the legislature said we put in place another study that we are going to perform.

And it’s because the State said — constantly said the legislature is going to do this cost study, figure out how much good programs cost, the school — the State board will be involved, et cetera, that the district court entered its orders looking to the time period in which it expected action to occur.

I mean, this happened over a nine-year period.

The district court, to be clear — I think this is a very important point — never said you need to do any special kind of ELL program, bilingual, structured English immersion, you need to have any certain number of teachers, nothing like that.

And it never said you need to put this certain amount of funding in place, $200, $300 per student, anything like that.

And Petitioners at the rule 60(b)(5) stage faced a heavy burden to show if what they wanted to show was that the State was now going to go down this new and different path, because even at the time of the rule 60(b)(5) hearing, the state Was on the same path.

It had just passed House Bill 2064, which just like at the time of the 2000 judgment said we are going to put a statewide program in place for ELL education–

Ruth Bader Ginsburg:

But the district — the district judge said that that 2064 did not have enough, it raised it to 450 or whatever.

And the district court said there are three things wrong with it, the two years, using the federal funds to — to supplant not supplement, and that the $450 figure wasn’t enough.

And the only way that $450 figure was going to get changed was through legislation, right?

Nicole A. Saharsky:

–Could I answer that?

I think the problem with the $450 figure is that the district court was never told what the State was planning to buy with that, what that $450 was for.

The State — the district court just said to the State, please tell me what your programs are going to do and approximately how much it costs to fund them.

And that 450 wasn’t tied to any particular ELL programs.

That was the problem.

Antonin Scalia:

Ms. Saharsky, I have one late arriving question.

Do you think that the constitutional — State constitutional provision at least there has to be equivalent funding in districts, do you think that would be called into play if the Federal Government under a federal program gave additional funds to a particular district?

Which I am sure it does, those districts that have federal facilities probably get additional — additional money, would all the rest — under this constitutional provision, would all the rest of the State have to belly up to that — to that same level?

Nicole A. Saharsky:

No, as I understand it–

Antonin Scalia:

I doubt it.

Nicole A. Saharsky:

–when it’s talking about a uniform–

Antonin Scalia:

Yeah.

Nicole A. Saharsky:

–and equal amount, it’s talking about the amount that the State gives to the school districts.

It’s not with respect to any federal funding from other sources.

Antonin Scalia:

Well, if federal funding doesn’t count, why would a federal decree applicable only to a particular school district count?

Nicole A. Saharsky:

I think that the idea was that there needed to be — the State determined that there needed to be — it was going to solve the problem statewide not only because of the concern under the State constitutions, that it would provide for all ELL students.

And it was not that it would provide the same amount to each school district, but just the same amount per ELL student.

That the State had decided that it was going to fill that responsibility because — both because of the Constitution and because it’s responsible for supervising education statewide.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Starr, you have three minutes.

Kenneth W. Starr:

Thank you.

Anthony M. Kennedy:

It seems to me, Mr. Starr, based on this last argument, that it actually is in your favor if the order of the court as to one district automatically requires additional expenditure for every other district, that is simply one more measure that the Court should use in finding an alternate remedy.

Kenneth W. Starr:

Yes, Your Honor.

The state funding remedy here is extraordinarily intrusive and overreaching.

It is something that has not been done under the EEOA ever, and certainly the No Child Left Behind provision should inform now this particular remedy.

The remedy was originally, of course, designed to address the situation in Nogales, but it was expanded–

Antonin Scalia:

It is no content to the equal child — No Child Left Behind.

There is no content to it.

All it requires is testing.

Kenneth W. Starr:

–It’s part–

Antonin Scalia:

You can’t say how much it’s going to cost.

Kenneth W. Starr:

–But, Your Honor, there is a very elaborate plan that is submitted and then a determination is made by the Federal Government about funds under Title 1 and Title 3, but here is our fundamental submission.

The Ninth Circuit simply applied the wrong 60(b)standard.

It, in fact, used this remarkable language, but it also of radical change, but it also gave undue weight.

It said it ten times to the fact that the original judgment was on appeal, and then it simply did not pay heed to the incredibly intrusive nature of a statewide funding remedy in light of the fact that we can now look at what has happened in Nogales.

We see the changes that have, in fact, been there, and certainly the EEOA by its design in section 1712 of EEOA makes it very clear that the remedial reach of the EEOA is quite limited.

It’s limited to particular circumstances.

Here the EEOA has been transmogrified to apply statewide.

That has not been done before.

It should not have been done in the first instance but certainly in light of the changed circumstances.

And the changed circumstances, Justice Ginsburg, go back to structured English immersion.

They did not begin with the passage of HB 2064.

Structured English immersion came in in the year 2000.

That is why the legislature then came in and put these facts in evidence before the district court, which made no factual findings statewide at all, ever.

There are no statewide factual findings in this record whatsoever, none.

And therefore statewide funding remedy should not have been permitted.

Sixty (b)(5) relief should be granted.

I thank the Court.

John G. Roberts, Jr.:

–Thank you, counsel.

The case is submitted.