Amicus Curiae Brief — Speaker of the Arizona House of Representatives v. Flores (Nos. 08-294, 08-289)

FILED

FES 2 6 2008

IN THE

Suprem: Court of the Anited States

SPEAKER OF THE ARIZONA HOUSE OF

REPRESENTATIVES and PRESIDENT OF THE

ARIZONA SENATE,

PETITIONERS,

Vv.

MIRIAM FLORES, individually and as parent of Miriam

Flores, minor child; ROSA RZESLAWSKI, individually and

as parent of Mario Rzeslawski, minor child; STATE OF

ARIZONA and the ARIZONA STATE BOARD OF

EDUCATION, and its members in their official capacities,

RESPONDENTS.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF ON BEHALF OF THE AMERICAN

LEGISLATIVE EXCHANGE COUNCIL AND

CERTAIN INDIVIDUAL STATE LEGISLATORS AS

AMICUS CURIAE IN SUPPORT OF PETITIONERS

SETH L. COOPER ROBERT O’BRIEN

AMERICAN LEGISLATIVE Counsel of Record

EXCHANGE COUNCIL JONATHAN E. PHILLIPS

1101 Vermont Ave. NW, Fl. 11 ARENT FOX LLP

Washington, DC 20005 555 West Fifth St., Fl. 48

(202) 742-8524 Los Angeles, CA 90013-1065

(213) 443-7512

Counsel for Amicus Curiae

February 26, 2009

WILSON-EPES PRINTING CO., INC. — (202) 769-0096 — WASHINGTON, D.C. 20002

eT

TABLE OF CONTENTS

INTEREST OF AMICUS CURIALE.............000. l

SUMMARY OF ARGUMENT. ...............ccesssoscsssseecevees 5

I siticinssinsnichnnteipiniiiiuitticiinbeesnimniuiilinininennees 6

I. Long-term Court Interference Disrupts

the Ability of State Legislators to Make

Vital Policy Decisions and Judgment

Calls in Response to Changing

Re on cansisekcleidlactibacabieniiasiaidadiimebaneinnied 6

A. Legislatures Require Flexibility

to Meet Changing Current

Circumstances as Well as Future

IN is inssshlceiaindiniaieiadeeaidineiicinimangiis 7

B. Fundamental and Sound

Principles of Federalism Require

That Injunctions and Consent

Decrees Be Managed in Such a

Way as to Avoid Subverting The

Democratic and Legilsative

PD seincdccdesesnuminse ndbauigtavacdaliimebesaes 11

C. The Ninth Circuit’s Decision

Ignores this Court’s’ Long-

Standing Precedent and Replaces

it with a Standard That Flies in

the Face of Democratic

Accountability, Separation of

Powers, and Principles of

RII Raed Oe es gene 14

i

II. The Ninth Circuit Has Allowed the

District Court to Co-opt the State

Legislative Power of Appropriations in

Order to Assert De Facto Control Over

Arizona’s Education System

A.

Exercise of Appropriations Power

Often Involves Complex,

Contentious Trade-Offs that

Belong Squarely in the

I HIN, dcrtsecceniinteroncecsinesens

Frustrated Political Factions Can

Improperly Use Institutional

Reform Litigation to Circumvent

the Legislative Appropriations

a

The Ninth Circuit’s' Decision

Risks Subjecting State

Legislatures to an _ Increasing

Number’ of District Court

Injunctions Requiring FRarmarks .....

Ili. Public Education Is Properly the Domain

of State Policymakers—Not Federal

Courts

A.

States Must Balance Competing

Interwsts While Managing

Interconnected and Ever-evolving

Educational Challenges....................

l. Without Proper

Accountability, More

Money Does Not Result in

— :

oe hO

>

ee

Improved EI. Services............. 29

2. The Ninth Circuit’s

Decision Disregards the

Congressional Mandate for

Accountability and

Standards, Insisting

Instead that Earmarked

Spending Is the Only

“Appropriate Action.” ................ 32

B. Reversal Is Necessary to Restore

Control Over the Education of

Arizona’s Youth to Arizona’s

Democratically Elected Leaders.......... 34

lV. Petitioners Have Standing to Appeal the

Rulings of the Lower Court in this

ERS EEL NG AOC NTO ROE ROMO

I wciccaeveiicjnnnedinnndaccnriconvsdianmianbubisiacsbanieds 38

Appendix

iV

TABLE OF AUTHORITIES

Cases

Federal Cases

Alexander v. Britt,

89 F.3d 194, (4th Cir. 1996)....................

Bowsher v. Synar,

EE . Fy GHEE edtsnecsscsssencnscosnsvesensns

Brown v. Board of Education,

Se Ss IIIT asindintnninanececcnensoneaconcsns

Ensley Branch, NAACP v. Siebels,

31 F.3d 1548, (11th Cir. 2003).................

Evans v. City of Chicago,

10 F.3d 474, (7th Cir. 1993) ..........0..00000.-.

Flores v. Arizona,

516 F.3d 1140, (9th Cir. 2008).................

Freeman v. Pitts,

Ee Se Ss COD cccucccccccsseveceseseccersavcuss

Frew v. Hawkins,

540 U.S. 431, (2004)................. 4, Li, U2,

Grier v. Goetz,

2006 U.S. Dist. LEXIS 11211

(M.D. Tenn., Mar. 15, 2006).....................

Grier vu. Goetz,

402 F.Sup.2d 871 (M.D. Tenn. 2005).......

Heath v. DeCourcy,

888 F.2d 1105, (6th Cir. 1989)................

In re Detroit Dealers Ass'n,

84 F.3d 787, (Gth Cir. 1996) ...............00000

Page(s)

vasneoasens 36

Ride 27, 32

13, 23, 41

seankesenens 24

Vv

Labor/Community Strategy Ctr. v.

L.A. County Metro. Transp. Auth..,

263 F.3d 1041 (9th Cir. 2001),

cert. denied, 535 U.S. 951 (2002)........................ 25

League of United Latin American Citizens,

Council No. 4434 v. Clements,

999 F.2d 831, (Sth Cir. 1993).............................. 13

Missouri v. Jenkins,

Un IIIS. I at ha 19, 27

New York v. United States,

EER eee hor noc 13

O'Sullivan v. City of Chicago,

- ee Fee, Le Se | eRe Cn NeEN EE 15

People Who Care v. Rockford Board of

Educ. School Dist. No. 205,

O61 F.Be LBS, CTR Ci. TOBE) ooccccccccccscccccoccsccces 13

Raines v. Byrd, :

OE TE I Wig shtinsidcdnnsdicinvasietemnanidanoneiaaaiaeen 36, 37

Reynolds v. Mcinnes,

338 F.3d 1221, (11th Cir. 2003)......................... 15

Rosen v. Goetz,

129 Fed. Appx. 167 (April, 12, 2005).................. 24

Rosen v. Goetz,

410 F.3d 919 (6th Cir. 2005)............................... 24

Rufo v. Inmates of Suffolk County Jail, 502

U.S. 367, (1992)......7, 10, 11, 12, 17, 18, 28, 34, 35

San Antonio Independent Sch. Dist. v.

Rodr'guez, 411 U.S. 1, 58 (1973) ....0.. ee. 27, 30

Stone v. State of Mississippi,

BS Ts es © OD witha cthibcenteatensxccusesesssmenieee 13

vi

Warth v. Seldin,

STREETS a 37

State Cases

Claremont Sch. Dist. v. Governor,

147 N.H. 499, (N.H. 2002) ......ccccccccccceccseeceecseeeess 32

Hunter v. State,

177 Vt. 339, 865 A.2d 381 (Vt. 2004)................. 16

State ex rel. Norfolk Beet-Sugar Co. v. Moore,

50 Neb. 88, 69 N.W. 373 (Neb. 1896).................. 16

Statutes and Rules

Federal Rule of Civil Procedure 60(b)(5) ................. 14

Nee eidslendnaaoopesnin 24

EEE oe a 32

i cecwenenneesion 16

Other Authorities

Andrew T. LeFevre, Report Card on American

Education: A State-by-State Analysis (15t ed.)

132-133, American Legislative Exchange Council

EIR eC en ES Oe ee 30

Benjamin Barr, The States’ Struggle for Sovereignty:

The Consequences of Federal Mandates, ALEC

ET SPUUNENE GEIR, BID cccccscccscccsnescssccceccscsescneses 8

Brad Haynes, “lennessee’s Democratic Governor

Weighs Rejecting Stimulus Funds,” The Wall

Street Journal (Feb. 24, 2009) ........................45. 21

Dan Lips, Shanea J. Watkins, and John Fleming,

Does Spending More on Education Improve

Academic Achievement? 6, The Heritage

Foundation (Sept. 8, 2008) ................cccccscsesseceess 30

vil

Frederick Hess, “Adequacy Judgments and School

Reform,” in School Money Trials 185 (Martin

West, ed., Brookings Institution Press) (2007) 31

Government Accountability Office, State and Local

Governments: Growing Fiscal Challenges Will

Emerge during the Next 10 Years 1 (Washington,

| Ie, SERED REESE PRR CN ROD 23

Jeremey A. Rabkin & Neal E. Devins, Averting

Government by Consent Decree: Constitutional

Limitations on Settlements with the Federal

Government, 40 Stan. L. Rev. 203, 271 (1987)... 19

Jordan Rau, Evan Halper and Patrick McGreevy,

“With budget stalemate over, next move is up to

California voters,” Los Angeles Times (Feb. 20,

Matthew G. Springer and James W. Guthrie,

“Adequacy’s Politicization of the School Finance

Legal Process,” in School Money Trials 121

(Martin West, ed., Brookings Institution Press)

TEI as siliiieiaiesthnsrecseisenseanetieieitisadsilisie thanscheidt initia 31

Michael Rothfield, “Arnold Schwarzenegger, Jerry

Brown will ask U.S. to end oversight of California

prison,” Los Angeles Times (Jan. 28, 2009). ........ 9

National Governors Association and National

Association of State Budget Officers, The Fiscal

Survey of States 8 (Dec. 2008).....................020.02. 22

Phillip Matier and Andrew Ross, “Plush hospitals for

state's felons,” San Francisco Chronicle (Jan. 12,

TUTE © ucitqnsnsiiapucdmeniaiaiacabinnivedsmnenbanteibieaaiideedanadinen Y

Vill

Ross Sandler & David Schoenbrod,

The Supreme Court, Democracy

and Institutional Reform Litigation,

49 N.Y.L. Sch. L. Rev. 915, 923-924 (2005).. 13, 20

Stanley J. Czerwinski, Government

Accountability Office, State and

Local Fiscal Challenges: Rising

Health Care Costs Drive Long-term and

Immediate Pressures, 1 (Washington, DC:

ee I, TIED niciinicianiinsiiciuiieiidecidondusanions 23

U.S. Chamber of Commerce, Leaders and Laggards:

A State-by-State Report Card on Educational

Effectiveness 7 (Feb. 2007) ...............-00-scccescseesess 30

INTEREST OF AMICUS CURIAE!

The American Legislative Exchange Council

(ALEC) is the nation’s largest non-partisan

individual membership’ association of _ state

legislators. ALEC has approximately 2,000 members

in state legislatures across the United States. It

serves to advance Jeffersonian principles of free

markets, limited government, federalism, and

individual liberty. ALEC has a number of interests

in this litigation, as reflected in its official policies

and publications.

ALEC’s Resolution on the Federal Consent

Decree Fairness Act (2006) sets forth ALEC’s firm

belief “that federal consent decrees [should be]

narrowly drafted, limited in duration, and respectful

of state and local interests and policy judgments.”

The Resolution is included in its entirety in

Appendix.

ALEC’s Education Principles state its mission

concerning public education: “To promote excellence

in the nation’s educational system by advocating

education reform policies that promote parental

choice and school accountability, consistent with

Jeffersonian principles of free markets’ and

federalism.” ALEC members hold leadership

positions in state Senate and House chambers, as

well as State legislative committees for education,

education finance and appropriations. These

' In accordance with Rule 37.6, amicus states that no counsel

for any party has authored this brief in whole or in part. and no

person or entity, other than amicus and its counsel has made a

monetary contribution to the preparation or submission of this

brief. In accordance with Rule 37.3(a), amicus states that al!

parties consented to the filing of this brief

2

legislators must fulfill state constitutional obligations

to provide for a public education and a determine

how federal legal requirements shall be satisfied.

ALEC supports the No Child Left Behind Act

(NCLB). ALEC's’ Resolution Supporting’ the

Principles of No Child Left Behind (2006) reaffirms

“that every child be afforded equal opportunity to a

quality education regardless of race, creed or

background, as recognized in Brown v. Board of

Education (1954).” It recognizes that “the No Child

Left Behind Act fundamentally changes the focus of

federal government resources from a system-based

focus to a child-based focus,” and that “proficiency for

all students and closure of the achievement gap,

focused on math, science and_ reading, is

fundamentally linked to overall reform of our system

of public education through a strong system of

accountability and transparency and built on state

standards.”

Joining with ALEC as amicus are the following

twenty individual state legislators, all of whom share

ALEC’s concerns (as expressed in this brief) with the

risks inherent in the Ninth Circuit’s “inflexible

standard” for modification of injunctions and consent

decrees:

Delegate William J. Howell

Speaker of the Virginia House of Delegates

2009 National Chairman, American Legislative

Exchange Council

Representative Liston Barfield

Member, House Ways & Means Committee

South Carolina House of Representatives

Senator Jim Buck

Indiana Senate

The Honorable Bill G. Carter

Former Representative (1983-2003)

Texas House of Representatives

Representative Stanley Cox

Missouri House of Representatives

Senator W. Edward Goodall, Jr.

Member, Senate Education Committee

Member, Senate Finance Committee

North Carolina Senate

Representative William A. Hamzy

Connecticut House of Representatives

Senator Owen Johnson

Former Chair, Senate Finance Committee (2003-08)

New York Senate

Representative Wes Keller

Member, Education Committee

Alaska House of Representatives

Senator Robert J. Letourneau

Senate Education Committee

New Hampshire Senate

Representative Susan Lynn

Chair, House Government Operations Committee

Tennessee Gencral Assembly

Delegate W. Anthony McConkey

Maryland House of Delegates

Representative Michael R. O’Neal

Speaker of the Kansas House of Representatives

Former Chair, Kansas House Education Committee

4

Representative Beverly Rodeschin

Member, House Finance Committee

New Ha aire House of Representatives

Senator Nancy Spence

Member, Senate Education Committee

Colorado Senate

Representative Scott Suder

Former Member, Wisconsin Joint Finance Committee

Wisconsin House of Representatives

Representative Kim Thatcher

Member, House Education Committee

Oregon House of Representatives

Representative Jordan G. Ulery

House Ways & Means Committee

New Hampshire House of Representatives

Delegate Ronald N. Walters

West Virginia House of Delegates

Representative Fran Wendelboe

Member, House Finance Committee

New Hampshire House of Representatives

SUMMARY OF ARGUMENT

This institutional reform case, commenced over

a decade ago, has embroiled the federal courts in a

policy dispute over how Arizona should provide

education to English language learners (ELL). The

case started as a class action by parents and students

against Nogales Unified School District for failure to

take “appropriate action” under the Equal

Educational Opportunity Act (EEOA) to overcome

students’ language barriers and provide access to

equal education. However, through subsequent

decisions of the District Court and the Ninth Circuit

decisions that intrude on the legislative and

appropriations power of the Arizona legislature — the

case has spun out of control and is now interfering

with the Arizona legislature’s ability to improve ELL

education statewide.

ALEC respectfully urges the Court to reverse

the Ninth Circuit and District Court rulings for the

following reasons:

1. The District Court’s long-term interference

with the state legislative process — which has now

been approved by the Ninth Circuit — disrupts the

ability of the Arizona legislature to make vital policy

decisions regarding ELL education in response to

ever-changing circumstances and future challenges.

Such a result is contrary to sound principles of

federalism, separation of powers, and democratic

accountability.

2. The Ninth Circuit has improperly allowed

the District Court to co-opt the Arizona legislature’s

appropriations power in order to assert de facto

control over Arizona’s school system. The District

Court's intrusion into the appropriations process has

6

severe and broad ramifications. It substantially

interferes with the legislature’s ability to utilize

appropriations as a means of effectuating necessary

legislative compromises. Even more troubling, the

implementation of the ruling at issue has enabled a

particular political faction to circumvent the

appropriations process entirely, and instead pursue

its political agenda through the federal courts.

3. The Ninth Circuit’s ruling ignores this

Court’s long-standing’ recognition that public

education is properly the domain of state and local

policymakers. By affirming the District Court’s

insistence on absolute funding increases instead of

the more balanced and effective use of performance

standards and accountability, as set forth in NCLB,

the Ninth Circuit has placed at risk the ability of

Arizona to best educate its youth—including its ELL

students.

ARGUMENT

For the reasons discussed below, ALEC

respectfully urges the Court to reverse the lower

courts’ rulings, and by so doing vindicate principles of

federalism, separation of powers, and democratic

accountability, and ultimately restore control over

Arizona’s educational system to the state and local

authorities best suited to educate Arizona’s youth.

I. Long-term Court Interference Disrupts

the Ability of State Legislators to Make

Vital Policy Decisions and Judgment

Calls in Response to Changing

Circumstances.

“Citizens are entitled to elect: state legislators

and other leaders to make policy decisions and do the

5

business of governing.” This fundamental democratic

principle, set forth in ALEC’s Resolution on the

Federal Consent Decree Fairness Act (2006)

(“Resolution”) (included in the attached Appendix), is

threatened where, as is the case here, “state and local

officials... inherit overbroad or outdated consent

decrees that limit their ability to respond to the

priorities and concerns of their constituents.” IJd., La.

As such, ALEC agrees with this Court’s concern

in Frew that consent decrees may “improperly

deprive future officials of their designated legislative

and executive powers,’ leading to “federal court

oversight of state programs for long periods of time

even absent an ongoing violation of federal law.”

Frew v. Hawkins, 540 U.S. 431, 441 (2004). As

reflected in the Resolution, ALEC believes that such

decrees should be “narrowly drafted, limited in

duration, and respectful of state and local interests

and policy judgments.” Resolution, App. la; see also

Frew, 540 U.S. at 441-442 (quoting Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367, 392 n.14 (1992))

(“[P]rinciples of federalism and simple common sense

require the [district] court to give significant weight

to the views of government officials.”). As discussed

below, ALEC’s position is consistent with this Court’s

recent decisions regarding institutional reform

litigation, and consistent with sound public policy

necessary for effective state and local government.

A. Legislatures Require Flexibility to

Meet Changing Current

Circumstances as Well as Future

Challenges.

Legislation does not occur in a vacuum. To the

contrary, legislatures are charged with continually

8

reassessing the needs of their state’s citizenry and

evaluating the best ways th which to allocate

resources to keep pace with changing circumstances.

“[A] state...depends upon successor officials, both

elected and appointed, to bring new insights and

solutions to problems of allocating revenues and

resources.” Frew, 540 U.S. at 442. Were this not the

case, the legislative branch would be largely

superfluous, as the executive and judicial branches

could together ensure that existing laws are enforced

and legislative priorities met. Such marginalization

of the legislative branch would be completely

inconsistent with principles of federalism, separation

of powers, and democratic accountability of state and

local governments.

In order to properly fulfill their duties, state

legislatures must frequently reassess how best to

meet both future and existing challenges, and must

retain sufficient flexibility to adjust legislative

priorities in light of changing circumstances. As a

recent article published by ALEC points out (in the

context of federally-mandated spending programs),

“fcJarefully designed local programs _— specifically

tailored to solve community problems should not be

displaced in favor of one-size-fits-all federal

formulas.”? In other words, flexibility to “specifically

tailor” programs best suited to the needs of state and

local governments must be protected in order to

preserve the proper role of the legislature.

When legislative flexibility is impeded — as it too

often is under consent decrees and court-ordered

> Benyamin Barr, The States ’ Struggle for Sovereignty. The Consequences

of Federal Mandates, ALEC Policy Forum (Sept. 2008), available at

9

injunctions — there are both immediate and long-

term ramifications.

A recent example highlights the immediate risks

inherent when legislative flexibility is tmpeded by

injunctions or consent decrees. California Governor

Arnold Schwarzenegger and Attorney General Jerry

Brown recently sought relicf from a district court

judge who had seized control of the prison healthcare

system three years ago. Apparently, the court-

appointed receiver approved an $8-billion plan to

renovate prison healthcare clinics.? Under this plan,

seven “holistic” facilities would be built, each roughly

the size of 10 Wal-Mart stores, containing amenities

such as “faJerobics and yoga classes, workout rooms

and open-air courtyards.”4 In response to complaints

about such lavish spending, the federal receivership’s

explanation was that these were “mental health

treatments already mandated by the courts.” Id.

Meanwhile, California’s legislature was in the

midst of a months-long battle to resolve a budget

crisis that threatened to cripple the state’s ability to

operate. The state legislature only recently reached

an agreement to close a budget gap exceeding $41

hillion.® Mere common sense dictates that today’s

* Michael Rothfield, “Amold Schwarzenegger, Jerry Brown will ask U.S.

to end oversight of California prison,” Los Angeles Times (Jan. 28, 2009)

available at http: www. latimes.com ‘news local/la-me-prisons2s-

2009jan28,0,2645570 story.

3)

* Phillip Matier and Andrew Ross, “Plush hospitals for state's felons.” San

Francisco Chronicle (Jan. 12, 2009) available at

http: www stgate conycyt-

buvarticle cart=c a 2009.01 12) BANYIS6U9ON DTL.

* Jordan Rau, Evan Halper and Patrick McGreevy, “With budget

stalemate over, next move ts up to California voters,” Los Angeles Times

(Feb. 20, 2009), available at http. www Jatiunes comp news local la-me-

cabfornie-budpet20-2009feb20,0, 209042 full story

10

legislature could have fashioned a solution to prison

healthcare that met federal requirements without

spending billions of dollars on day spas for prison

inmates. Yet because the state was locked into a

consent decree from three years ago (when the

budget crisis was not yet on the horizon), the

legislature's ability to solve today’s budget crisis was

hamstrung to no small degree by the billions of

dollars already committed by this and other consent

decrees.

The democratic accountability of state and local

government institutions is at even greater risk when

legislative flexibility is impeded under injunctions or

consent decrees of long duration:

The upsurge in institutional reform

litigation since Brown v. Board of

Education ... has made the ability of a

district court to modify a decree in

response to changed circumstances all

the more important. Because such

decrees often remain in _ place for

extended periods of time, the likelihood

of significant changes occurring during

the life of the decree is increased.

Rufo, 502 U.S. at 380 (citing Brown, 347 U.S. 483

(1954)).

The longer the contemplated duration of the

injunction or consent decree, the more critical it

becomes that district courts recognize that such

injunctions and consent decrees must be limited in

scope and flexibly administered. If they are not, thev

ultimately risk binding future elected officials to

outdated agreements which are neither grounded tn

current circumstances nor connected to any ongoing

violation of federal law. Such an undermining of

democratic accountability and subverting of the

separation of powers has been rejected by this Court.

See, e.g., Frew, 540 U.S. at 441 (“If not limited to

reasonable and necessary implementations of federal

law, remedies outlined in consent decrees involving

state officeholders may improperly deprive future

officials of their designative legislative and executive

powers.”); Rufo, 502 U.S. at 392 (“To refuse

modification of a decree is to bind all future officers of

the State, regardless of their view of the necessity of

relief from one or more provisions of a decree that

might not have been entered had the matter been

litigated to its conclusion.”)

A flexible approach to modification of

injunctions and consent decrees is_ therefore

necessary, both to ensure that previous legislatures

have not improperly outsourced critical decision-

making powers of state and local elected officials and,

if they have, to return those decision-making powers

to the legislative branch as soon as_ reasonably

possible.

B. Fundamental and Sound Principles

of Federalism Require That

Injunctions and Consent Decrees

Be Managed in Such a Way as to

Avoid Subverting The Democratic

and Legislative Processes.

While ALEC maintains that legislative

flexibility is essential to proper democratic

governance, ALEC also recognizes that this flexibility

is sometimes necessarily constrained by the need for

federal court intervention to remedy ongoing

violations of federal law. However, anytime a federal

12

court does intervene — regardless of the justification —

there is an unavoidable subversion of the democratic

and legislative process. Recognizing this, the Court

has established a “flexible standard” for modifying

federal injunctions and consent decrees that impact

state and local governments. See Rufo, 502 U.S. at

381 (“The experience of the District Courts of

Appeals in implementing and modifying such decrees

has demonstrated that a flexible approach is often

essential to achieving the goals of reform litigation”);

Frew, 540 U.S. at 441 (reiterating that a “flexible

standard’ to the modification of consent decrees when

a significant change in facts or law warrants their

amendment’) (citing Rufo, 502 U.S. at 393).

The flexible standard set forth in Frew shows

the Court’s respect for the sovereign powers of states

and the limited nature of judicial equitable powers in

utilizing injunctions and consent decrees to ensure

comphance with federal law. The importance of

placing reasonable limitations on the use of consent

decrees cannot be overstated, as “such decrees ‘reach

beyond the parties involved directly in the suit and

impact on the public's right to the sound and efficient

operation of its institutions.” Rufo, 502 U.S. at 381,

(quoting Heath v. De Courcy, 888 F.2d 1105, 1109

(6th Cir. 1989)). It is therefore AILEC’s belief that a

“flexible standard” is the only principled way to

balance the need for district courts to enforce federal

law with the need to support the democratic

accountability of state and local governments.

Moreover, this “flexible standard” has been

aptly described as “consistent with one of the most

basic principles of municipal law that holds that

neither a government nor its officials may contract

13

away the power to govern.”® As this Court once

declared, “[ajll agree that the legislature cannot

bargain away the police power of a State.” Stone v.

State of Mississippi, 101 U.S. 814, 817 (1879).

Similarly, “a departure from the constitutional plan

cannot be ratified by the ‘consent’ of state officials.”

New York v. United States, 505 U.S. 144, 182 (1992).

This Court, in Frew, “speaks to this reality by

instructing judges and litigants that they are not to

forget the values associated with local democracy and

flexibility, nor the difficult reality or costs of social

change. Judges walk a fine line when affirmatively

dictating how government will deliver services.”?

Finally, federal courts should be even more leery

of substituting their policy judgment for lawmakers’

judgment when the issue is hotly debated and subject

to a wide likelihood of outcomes. In such contexts,

there is a very real risk that politicians who are

unable to obtain their favored policy outcome through

the legislative process may instead seek to subvert

the legislative process through consent decrees or

injunctions. League of United Latin American

Citizens, Council No. 4434 v. Clements, 999 F.2d 831,

846 (5th Cir. 1993); People Who Care v. Rockford

Board of Educ. School Dist. No. 205, 961 F.2d 1335,

1337 (7th Cir. 1992). Just such conduct occurred

here. The former Governor of Arizona, along with

® Ross Sandler & David Schoenbrod, The Supreme Court,

Democracy and Institutional Reform Litigation, 49 N.Y.L. Sch

L. Rev. 915, 923-924 (2005).

7 Sandler & Schoenbrod, supra, at 929.

“ This potential subversion of the legislative process 1s discussed

in greater detail below (in Section [1.B) with regards to the

appropriations process.

14

various state education officials, have allowed the

injunction and declaratory judgment to continue for

reasons personal to their own political agendas and

contrary to the collective will of the democratically-

elected legislature. The continued support of the

injunction by these government officials is indicative

only of their unchanged individual policy preferences,

and thus is no justification for the lower courts’

decisions.

Federal courts should avoid taking sides in such

policy debates, and should only assert thir equitable

power over state institutions where there is a

continuing violation of federal law. Evans, 10 F.3d at

477-80; Dowell, 498 U.S. at 247.

C. The Ninth Circuit’s Decision

Ignores this Court’s Long-Standing

Precedent and Replaces it with a

Standard That Flies in the Face of

Democratic Accountability,

Separation of Powers, and

Principles of Federalism.

As the above discussion demonstrates, there are

very real and very troubling risks associated with

even the most necessary institutional reform

litigation injunctions or consent decrees—and indeed

it is these concerns that underlie the Court’s “flexible

standard” for granting relief under Federal Rule of

Civil Procedure 60(b)(5). At the very least, district

courts must recognize that an ongoing injunction

exceeds “appropriate limits” when there is no

continuing violation of federal law. Evans, 10 F.3d at

477-80; Dowell, 498 U.S. at 247. Here, the Ninth

Circuit wrongly ignored this basic requirement — and

indeed the entire “flexible standard” required under

15

this Court’s precedent and applied by the Fourth,

Sixth, Seventh and Eleventh Circuit Courts of

Appeal? — and instead held that the injunction at

issue here could only be modified upon a showing

either “that the basic factual premises of the district

court’s central incremental funding determination

had been swept away,” or “some change in the legal

landscape that makes the original ruling now

improper. ’!°

Such an interpretation treats the District

Court’s injunction and declaratory judgment as ends

in themselves rather than as means of ensuring

compliance with federal law, and is thus improper.

Reversal of the ruling is necessary to vindicate this

Court’s “flexible standard” to modifying injunctions

and consent decrees, and to revitalize important

principles of democratic accountability, separation of

powers, and federalism.

Il. The Ninth Circuit Has Allowed the

District Court to Co-opt the State

Legislative Power of Appropriations in

Order to Assert De Facto Control Over

Arizona’s Education System.

3% See Alexander v. Britt, 89 F.3d 194, 199-200 (4th Cir. 1996);

Heath vu. DeCourcy, 888 F.2d 1105, 1110 (6th Cir. 1989): Jn re

Detroit Dealers Ass'n, 84 F.3d 787, 790 (6th Cir. 1996); Evans v.

City of Chicago, 10 F.3d 474, 477-479 (7th Cir. 1993); O'Sullivan

vu. City of Chicago, 396 F.3d 843, 862-865 (7th Cir. 2005);

Reynolds v. McInnes, 338 F.3d 1221, 1226 (11th Cir. 2003);

Ensley Branch, NAACP v. Siebels, 31 F.3d 1548, 1563-1566

(11th Cir. 2003).

‘© Pet. App. 63a.

16

Not only has the District Court here deprived

the Arizona legislature of the flexibility needed to

best educate both current and future ELL students,

the Ninth Circuit has allowed the District Court to do

so by improperly intruding on the domain of state

legislative appropriations. This intrusion is improper

on many levels, not the least of which is its disregard

for the constitutional mandate that appropriations

are properly a legislative function,!! a principle that

has been long recognized by both federal and state

courts. See, e.g., Bowsher v. Synar, 478 U.S. 714, 763

(1986) (“appropriating funds is a_ peculiarly

legislative function”); Hunter v. State, 177 Vt. 339,

346-349, 865 A.2d 381 (Vt. 2004) (and cases discussed

therein); State ex rel. Norfolk Beet-Sugar Co. uv.

Moore, 50 Neb. 88, 96-102, 69 N.W. 373 (Neb. 1896).

Of course, ALEC recognizes that there is an

unavoidable tension between legislative

appropriations power and a district court’s equitable

authority to enforce federal law in the context of

institutional reform litigation. It is inevitable that

compliance with consent decrees and/or injunctions

will require at least some (and often substantial)

state expenditures. However, under the separation

of powers doctrine, courts addressing institutional

reform litigation should not ignore the importance of

preserving legislative appropriations § authority:

“Financial constraints may not be used to justify the

creation or perpetuation of constitutional violations,

'! See U.S. Const. art 1, § 9, cl. 7 (“No Money shall be drawn

from the Treasury, but in Consequence of Appropriations made

by Law; and a regular Statement and Account of the Receipts

and Expenditures of all public Money shall be published from

time to time”).

17

but they are a legitimate concern of government

defendants in institutional reform litigation and

therefore are appropriately considered in tailoring a

consent decree modification.” Rufo, 502 U.S. at 392-

393 (emphasis added). *

In order to balance the need to enforce federal

law with the need to_ preserve legislative

appropriations authority, ALEC believes that courts

considering requests for modification of an injunction

or consent decree should account for at least the

following three related issues: (A) the complex and

often contentious nature of the appropriations

process; (B) the risk that institutional reform

litigation can be used to circumvent’ the

appropriations process; and (C) the inherent dangers

in allowing earmark funding achieved through

injunctions or consent decrees. As discussed below,

failure to consider these key issues increases the

likelihood that injunctions and consent decrees

arising out of institutional reform litigation will far

exceed their original purpose (i.e., addressing

ongoing violations of federal law) and instead become

mere political tools used to further particular

political agendas.

A. Exercise of Appropriations Power

Often Involves Complex,

Contentious Trade-Offs that Belong

Squarely in the Legislative Arena.

Appropriations decisions are often among the

most contentious decisions made _ in _ state

legislatures. Majority and minority political party

caucuses in each chamber wrestle over spending

priorities, competing interests are weighed, and

compromises are reached through the _ political

18

process. State Senate and State House bodies duel

with one another for weeks — or even months, as seen

most recently in California — over spending items,

sending budget proposals back and forth. In the final

days of state legislative sessions, last-minute

spending compromises often require painstaking

negotiation.

It is not surprising that appropriations decisions

necessarily include such difficulties, complexities,

and trade-offs, particularly given that different and

competing government agencies, public programs,

and c’tizen constituencies vie for state funding from a

lhmite:: (and too often dwindling) state treasury.

“Public officials often operate within difficult fiscal

constraints; every dollar spent for one purpose is a

dollar that cannot be spent for something else.”

Rufo, 502 U.S. at 396 (O'Connor, J., concurring).

The weighing of different public policies and

their related economic and social costs simply cannot

be carried out according to bright-line formulas. To

the contrary, consideration of innumerable variables

is called for in reaching political compromises. It

goes without saying that such a political process,

characterized as it is by contentious debate and

political compromise — is also a process ripe for

abuse. It is thus vital that the appropriations

process remain centered within the legislature,

which, while not immune to abuse, is safeguarded by

built-in democratic accountability. When

appropriations are removed or distanced from the

legislative process, the potential for abuse too often

becomes reality.

19

B. Frustrated Political Factions Can

Improperly Use Institutional

Reform Litigation to Circumvent

the Legislative Appropriations

Process.

The purpose of injunctions or consent decrees in

institutional reform cases is to address current and

ongoing violations of federal law, and as such should

ideally remain separated from the political

dimensions attendant to appropriation matters.

Missouri v. Jenkins, 515 U.S. 70, 130-33 (1995)

(Thomas, J., concurring). Unfortunately,

institutional reform litigation is often seen by rival

political factions as merely another battlefield for

their political disputes.”

For example, defendant state and local officials

can enter into a consent decree (or choose: not to

contest an injunction) in hopes of obtaining benefits

(e.g., funding) for an institution or program that they

have failed to obtain through the legislative

appropriations process. In other words, institutional

reform litigation in such cases is used to transfer the

debate over appropriations out of the legislature and

into the federal courts.

‘2 See Jeremy A. Rabkin & Neal E. Devins, Averting

Government by Consent Decree: Constitutional Limitations on

Settlements with the Federal Government, 40 Stan. L. Rev. 203,

271 (1987):

(O}fficials in different agencies at different levels

of authority are engaged in continuous pulling

and hauling over resources, priorities, and

subtle gradations of policy. A consent decree

can be an all too ready handle for officials at one

level to manipulate their superiors or rivals

20

Other government officials may enter into

consent decrees in order to dodge negative publicity

by abdicating responsibility to the federal courts for

unpopular initiatives and/or funding decisions.!* In

this sense, many institutional reform litigation cases

— including this case — are used by vying political

factions to shift the venue of ongoing public policy

disputes from the court of public opinion to a court of

law.

Regardless of the motivation for entering into a

consent decree, or for choosing not to fight an

injunction, the mere fact that a _ particular

appropriations issue is taken over by the federal

courts has both short-term and _ long-term

implications on the appropriations process generally.

In the short term, it must be recognized (as it

surely is by the government officials involved), that

the particular issue addressed through the consent

decree or injunction is effectively taken off the

appropriations bargaining table. As discussed above,

appropriations decisions are often reached as a result

of negotiation, bartering, and compromise. By

obtaining one of their appropriations goals outside of

the legislative process, the _ political faction

'3 Sandler & Schoenbrod, supra, at 927:

Governors and mayors generally share the goals

of the litigation; they desire to avoid being

labeled as lawbreakers and to be scen instead as

problem solvers. They cannot reliably be

depended upon to withhold consent from decrees

that set out obligations in excess of, or different

from, the federal statute, or which imposes

details of compliance and milestones that would

under other circumstances be left to the

managers of the program.

21

supporting the consent decree will have preserved

political capital and negotiating leverage. In turn,

they can utilize this leverage to gain additional

appropriations concessions that they never would

have obtained otherwise. Thus, even where a district

court asserts allegedly “narrow” control over a

particular issue (here, ELL funding), such control in

reality has a broad and profound effect on the overall

appropriations process.

The long term impact of injunctions or consent

decrees that invade the appropriations process is

equally profound, and perhaps even more troubling.

First, the short term negotiation/leverage issue

discussed above does not dissipate with time. To the

contrary, each year the political faction having

obtained the injunction or consent decree will

approach the appropriations bargaining table with

an ace up their sleeve. Second, where the injunction

or consent decree dictates long-term spending on a

particular issue (as is the case here), there is a very

real possibility that a type of “funding inertia” will

develop, such that the state may be unable to

decrease the funding level even after the consent

decree or injunction is ultimately modified or

rescinded.'4 Thus, what should properly be a

‘4 This concern is not merely theoretical. Some state governors

are considering rejecting funds being provided to states through

the recent stimulus legislation for similar reasons. They fear

that, while the stimulus funding is temporary, the increased

spending will become a habit their states cannot break. See,

e.g., Brad Haynes, “Tennessee’s Democratic Governor Weighs

Rejecting Stimulus Funds,” The Wall Street Journal (Feb. 24,

2009) (reporting that Tennessee’s Governor Phil Bredesen “is

concerned that accepting $141 million for Tennessee's

unemployment insurance would force the state to expand the

program and leave state taxpayers with the bill in two vears’

22

temporary and focused solution to particular

violations of federal law can, when used instead as a

means to circumvent the appropriations process,

evolve into permanent earmark funding.

C. The Ninth Circuit’s Decision Risks

Subjecting State Legislatures to an

Increasing Number of District

Court Injunctions Requiring

Earmarks.

By giving federal district courts broad latitude

to impose particular mechanisms for appropriations

based on novel federal legal requirements, the Ninth

Circuit has empowered district courts to enter

ongoing public policy battles by controlling funding of

state and local institutions and programs. As a

result, state and local governments now face greater

likelihood that institutional reform plaintiffs (and

often the government defendants themselves) will

seek earmark appropriations by judicial order.

This specter of earmark appropriations through

federal district court consent decrees and injunctions

threatens states in a multitude of areas. For

example, in the health care arena, states are

increasingly taking on greater obligations to their

citizens through Medicaid programs,!® and are

time”) available at

http://blogs.ws).com/washwire/2009/02/24/tennessees-

democratic-governor weighs-rejecting-stimulus-funds/.

National Governors Association and National Association of

State Budget Officers, The Fiscal Survey of States 8 (Dec. 2008)

(“Medicaid accounted for 20.7 percent of total state spending in

fiscal 2008.... Since Medicaid spending makes up such a large

portion of state budgets, the growth rates relative to overall

budyet increases have a significant impact the allocation of

23

projected to face serious long-term budgetary

difficulties in meeting these obligations.46 Medicaid

comes with significant federal requirements that

states must meet to obtain matching federal grants,

and state compliance with these federal

requirements has already been the subject of

institutional reform litigation. See, e.g, Frew, 540

state spending‘) available at

http://www.nasbo.org/Publications/PDFs/Fall2008FiscalSurvey

pdf.

16 Government Accountability Office, State and _ Local

Governments: Growing Fiscal Challenges Will Emerge during

the Next 10 Years 1 (Washington, DC: GAO, January, 2008) (“in

the absence of policy changes, large and recurring fiscal

challenges for the states and local sector will begin to emerge

within a decade” and observing that “the growth in the health-

related costs serves as the primary driver of the fiscal

challenges facing the state and local government sector’)

available at www.gao.gov/new.items/d08317.pdf. See also

Stanley J. Czerwinski, Government Accountability Office, State

and Local Fiscal Challenges: Rising Health Care Costs Drive

Long-term and Immediate Pressures, 1 (Washington, DC: GAO,

January, 2008):

Growth in health-related spending []

drives the long-term fiscal challenges facing

state and local governments. The magnitude

of these pressures presents vexing long-term

sustainability challenges for all levels of

government. The current turmoil in the

financial sector adds to the immediate fiscal

and budgetary challenges for’ these

governments as they attempt to remain in

balance in a rapidly changing and uncertain

budget environment. States and localities are

facing increased demand for services during a

period of declining revenues and reduced

access to capital.

24

U.S. at 433 (“State participation [in Medicaid] is

voluntary; but once a State elects to join the

program, it must administer a state plan that meets

federal requirements”). In hght of these long-term

difficulties, ALEC has expressed misgivings with a

district court’s oversight of Tennessee’s Medicaid

program. Reforms approved in 2004 by Tennessee’s

governor and the state legislature were blocked

because of consent decrees dating to 1979. See Grier

v. Goetz, 402 F.Sup.2d 871 (M.D. Tenn. 2005),

amended by, motion denied by Grier v. Goetz, 2006

U.S. Dist. LEXIS 11211 (M.D. Tenn., Mar. 15, 2006).

The result from these cases, at least initially, was

that only some of the legislatively-approved reforms

were allowed to go forward.'’ In turn, taxpayers

were saddled with increased costs and many

Medicaid enrollees lost their coverage..

ALEC has also expressed concerns with a

number of other institutional reform litigation

consent decrees. For example, Jose P. v. Ambach was

a class action brought under the Individuals with

Disabilities Education Act (IDEA). Jose P. v.

Ambach, No. 9 Civ. 270 (E.D.N.Y. Feb. 1979); 20

U.S.C. §§ 1400 et seq. As a consequence of this

litigation, special education in New York City has

heen subject to a consent decree since 1979,

thwarting efforts by successive mayors and school

officials to make reforms and update policies for

implementing IDEA. Due to budget constraints, the

decree has reduced money available for students in

non-special education courses, as plaintiffs’ attorneys

‘17 The Sixth Circuit did eventually reverse two of the district

court's orders. See Rosen v. Goetz, 410 F.3d 919 (6th Cir YOUS):

Rosen v Goetz, 129 Fed. Appx. 167 (April, 12, 2005).

25

have retained control over significant portions of the

city’s budget. Thus, under the decree, the City

Council has been shut out of important policy-

making decisions, and outdated policies have been

locked into place without any meaningful review of

their effectiveness or continuing appropriateness.

ALEC has likewise voiced concern with the

decree controlling the Los Angeles County

Metropolitan Transit Authority. Labor/Community

Strategy Ctr. v. L.A. County Metro. Transp. Auth.,

263 F.3d 1041 (9th Cir. 2001), cert. denied, 535 U.S.

951 (2002). By decree, the Transit Authority has

been required to give busing 47 percent of its budget

resources, with all remaining _ transportation

necessities receiving a little over half of the budget.

Labor/Community Strategy Ctr. v. L.A. County

Metro. Transp. Auth., No. CV 94-5936 (C.D. Cal. Oct

31, 1996). This inflexible budget mandate has

severely hampered the Transit Authority's ability to

address the evolving transportation needs of Los

Angeles and its surrounding counties (e.g., by

developing more extensive mass transit).

The above cases are only a few of the numerous

examples of the inherent dangers when the judiciary

co-opts the legislature’s appropriations role. The

Ninth Circuit’s. inflexible approach to _ the

modification of district court injunctions and consent

decrees could dramatically increase institutional

reform litigation seeking’ similar earmarked

spending. By creating nearly impossible hurdles tor

modifying existing injunctions and consent decrees,

the Ninth Circuit has created a perverse incentive for

some politicians and = government officials to

manipulate institutional reform litigation (regardless

of the actual merits of the litigation) in order to

26

obtain benefits for institutions or programs that

otherwise could not be achieved through the

legislative process. Once earmarked funding has

been obtained through a consent decree or injunction,

the Ninth Circuit’s new inflexible standard insulates

these earmarks from future shifts in political power.

Such use of institutional reform litigation

necessarily undermines the separation of powers,

allowing district courts to elevate discretionary policy

choices involving legislative appropriations into

specific federal requirements—and doing so here

while holding the Arizona legislature hostage with

threats of multi-million dollar daily fines. This

Court’s vindication of. the flexible standard for

administering injunctions and consent decrees is

crucial to correcting the Ninth Circuit’s troubling

backshde.

lil. Public Education Is Properly the Domain

of State Policymakers—Not Federal

Courts.

The policy considerations and legal implications

discussed above are nowhere more important than in

the context of public education and ELL services. As

this Court has repeatedly recognized, public

education is a primary responsibility of states. See,

e.g., Brown v. Board of Education, 347 U.S. 483, 493

(1954). Even when addressing highly-charged

constitutional issues, such as school desegregation,

the maintenance of public education’ should

ultimately rest in the hands of state and local

officials: “federal! judicial supervision of local school

systems was intended as a temporary measure,” with

the ultimate objective being “to return school

27

districts to the control of local authorities.” Freeman

v. Pitts, 503 U.S. 467, 489-90 (1992).

Furthermore, it is not only the setting of

curriculums or the training and overseeing of

teachers that ultimately belongs under local control.

The Court has also recognized that financing of

public education is itself a significant function of

state and local governments. See, e.g., San Antonio

Independent Sch. Dist. v. Rodriguez, 411 U.S. 1, 58

(1973) (“The consideration and _ initiation of

fundamental reforms with respect to state taxation

and education are matters reserved for the legislative

processes of the various States.”).

Maximizing local control of public education is

sound policy. ALEC believes that public education

and finance decisions are necessarily local and

intimate in nature, and recognizes an

interconnectedness between parents, taxpayers, and

government officials that forms the crux of public

education administration. Indeed, “local autonomy of

school districts is a vital national tradition, and... a

district court must strive to restore state and local

authorities to the control of a schoo] system operating

in compliance with the Constitution.” Missouri v.

Jenkins, 515 U.S. at 99; Dowell, 498 U.S. at 248

(“Local control over the education of children allows

citizens to participate in decisionmaking, and allows

innovation so that school programs can fit that

needs.”).

Here, the Ninth Circuit has disregarded this

fundamental recognition of the importance of local,

democratically-informed control and _ funding of

education, and instead has allowed the District Court

to seize control of Arizona’s statewide ELL services.

28

Make no mistake about it: the Ninth Circuit’s

opinion, if upheld, will impact every aspect of

Arizona’s ELL services at some _ level—from

financing, to curriculum, to training and staffing. By

impeding the Arizona Legislature’s ability to work

with local school districts to pursue innovative ELL

solutions — solutions that include good incentives,

standards, and accountability — the Ninth Circuit

and the District Court have wrestled control of

Arizona’s ELL services away from those best suited

to educate Arizona’s youth.

In short, the Ninth Circuit has allowed the

District Court to further its own educational agenda

by inserting itself into an education policy dispute

between the political branches of Arizona. This

Court’s long-standing precedent simply does not

allow the federal courts to override state and local

control of education absent a current and ongoing

violation of federal law. Rufo, 502 U.S. at 389. As

discussed below, it is ALEC’s firm belief that to allow

otherwise is both improper and inefficient, and

ultimately will severely undercut the ability of

Arizona's schools to best educate their ELL students.

A. States Must Balance Competing

Interests While Managing

Interconnected and Ever-evolving

Educational Challenges.

Today's educational landscape is more complex

and demanding than ever before. Managing the

interconnected relationship of education

constituencies involves myriad complexities,

competing policy choices, and trade-offs. It is local

authorities who are on the front lines of addressing

these competing interests, and local authorities who

29

have the ultimate mandate to manage their districts

properly. Thus, local institutions must be allowed to

utilize a variety of policy approaches to ensure proper

accountability, standards, and funding for their

educational programs. Simultaneously, states must

ensure that the interests of local control are balanced

by performance-driven accountability standards.

Particularly in light of the current economic

uncertainty, it is vital that states retain flexibility to

make appropriations decisions that allow them to

manage these competing interests, meet increasing

federal mandates, and avoid disastrous budget

shortfalls.

1. Without Proper

Accountability, More Money

Does Not Result in Improved

ELL Services.

Complicating these issues further, and thus

buttressing the importance of a system centered on

local control, is the fact that the most effective

methods for achieving improved’ educational

performance is a matter of ongoing debate.

Early advocates for education reform (in the

1970s and 1980s) pushed for increases in absolute

funding as the primary means by which reform

should be obtained. However, as ALEC’s studies of

educational spending have demonstrated, rigorous

performance standards and financial accountability

mechanisms are crucial to improving public

education, and increases in educational spending

without standards and accountability will most likely

be ineffective. This is not news to this Court.

Indeed, the Court has recognized that “one of the

major sources of controversy concerns the extent to

30

which there is a demonstrable correlation between

educational expenditures and the quality of

education.” Rodriguez, 411 U.S. at 42-43.

The policy debate regarding the effectiveness of

increased spending as the primary approach to

improving overall educational performance continues

today. For instance, ALEC’s recent study of

educational spending increases and_— student

achievement test results raised questions as to the

effectiveness of spending increases alone _ in

improving performance.'® This study established

that factors such as per pupil expenditures, teacher

salaries, and funds received from the federal

government do not — either taken together or alone —

explain differences in school achievement. Id. By

negative inference, then, there must be factors other

than funding that do explain these achievement

differences.

Another study suggests that factors such as

financial accountability and academic standards — as

opposed to merely increasing absolute spending —

have profound effects on educational performance. !9

'8 Andrew T. LeFevre, Report Card on American Education: A

State-by-State Analysis (15t ed.) 132-133, American Legislative

Exchange Council (Feb. 2009) available at:

http //www_ealec.org/um/pdfReponC ardO& pdt.

‘9 U.S. Chamber of Commerce, Leaders and Laggards: A State-

by-State Report Card on Educational Effectiveness 7 (Feb. 2007)

available at

m3mryxodnsim7ig2uyrtadyvrgdxsagivkxafz6rsbuzaopotuxy4ode

pinovhme3’ppe7drjd/USChambcrLeadersandLaggards.pdf.

See also Dan Lips, Shanea J. Watkins, and John

Fleming, Does Spending More on Education Improve Academic

Achievement? 6, The Heritage Foundation (Sept. 8, 2008)

31

Additionally, scholarly debate exists over

whether it is effective to mandate educational

spending increases through litigation in the first

instance.2° Recent scholarship suggests that while

court mandates for education spending may have

some short-term results, the long-term impact has

not been particularly positive.?!

Finally, it is not only scholars and advocacy

groups that have recognized the ‘inadequacy of

relying solely on increased spending to increase ELL

effectiveness. There was a bipartisan recognition of

the need for stricter accountability and standards

that led to Congress enacting NCLB in 2002. Title

III of NCLB specifically addresses the issues of ELL.

Moving beyond the “appropriate action” required

under the EEOA, Congress required states and

available at

http://www_heritage org/Research/Kducation/bg2 1789.ctm

(“Long-term measures of American’ students’ academic

achievement ... show that the performance of American

students has not improved dramatically in recent decades,

despite substantial spending increases”).

20 See, e.g., Matthew G. Springer and James W. Guthrie,

“Adequacy’s Politicization of the School Finance Legal Process,”

in School Money Trials 121 (Martin West, ed., Brookings

Institution Press) (2007) (“Legislative and executive branch

deliberations are better adapted to accommodating uncertainty,

deconstructing complexity and considering trade-offs since their

operational arrangements permit a far wider opportunity for

constructive criticism and successive approximation to take

place’).

a

“| See Frederick Hess, “Adequacy Judgments and School

Reform,” in School Money Trials 185 (Martin West, ed.,

Brookings Institution Press) (2007) (“successtul adequacy efforts

modestly hoosted total spending but had no discernable effect on

teacher pay or class size”).

32

school districts to implement new programs, develop

quantifiable performance benchmarks, and annually

report progress. See 20 U.S.C. §§ 6301, et seg. See

also Claremont Sch. Dist. v. Governor, 147 N.H. 499,

508-509 (N.H. 2002) (concluding that accountability

standards are an essential component of the State’s

constitutional duty to provide adequate education).

2. The Ninth Circuit’s Decision

Disregards the Congressional

Mandate for Accountability

and Standards, _Insisting

Instead that Earmarked

Spending Is the Only

“Appropriate Action.”

If nothing else, the above discussion

demonstrates that there are no bright-line solutions

to the challenges facing schools endeavoring to

improve educational performance. [For this reason,

ALEC believes it is vital that state and local

governments fulfill their responsibilities within the

context of democratic accountability and separation

of powers. Thus, while, it is undisputed that federal

district courts may ensure that public education

meets the requirements of federal law, it is state and

local governinents that are best equipped to

determine the means by which that end is met. See

Freeman, 503 U.S. at 489 (“the court’s end purpose

must be to remedy the violation and, in addition, to

restore state and local authorities to the control of a

school system that is operating in comphance with

the Constitution) (emphasis added). Put another

way, district courts must remain focused on whether

public education is in compliance with the standards

of federal law, not take sides in contested educational

33

policy debates over the most effective methods for

obtaining such compliance. Under the Ninth

Circuit’s decision, district courts can usurp the role of

state and local governments in order to promote

disputed policy viewpoints under the guise of

enforcing federal law. This approach undermines

(indeed nearly obliterates) democratic accountability

and separation of powers.

The negative impact of such a role-reversal is

highlighted by the Ninth Circuit's decision here. The

District Court posited that increased educational

spending correlates with ELL educational success—

supposedly fulfilling the requirements of EEOA §

1703(f). By implication, more balanced policy

approaches — such as those that include performance

standards and financial accountability -— are

unsatisfactory. But, as discussed above, throw-more-

money-at-the-problem approach ignores the fact that

the correlation between increased spending and

improved performance is questionable at best. Thus,

while the original finding of a violation of the EEOA

and subsequent injunction and consent decree

purported to ensure that Arizona schools meet

federal requirements for EI.I., in reality it has likely

had the opposite effect. The goal of achieving equal

access to educational opportunities for ELL students

has been replaced by a policy decision that specific

earmark funding for ELL programs is the only way to

comply with the EEOA—notwithstanding that the

requirements imposed by the District Court clearly

exceed the terms of the FEOA and NCLB.

Remarkably, this policy decision has been

endorsed by both the Ninth Circuit and the District

Court despite their recognition that Arizona has

“substantially complied” with the purpose of the

34

original injunction. In other words, the Ninth Circuit

and District Court have unnecessarily placed means

above ends in purporting to ensure compliance with

federal law.

B. Reversal Is Necessary to Restore

Control Over the Education of

Arizona’s Youth to Arizona’s

Democratically Elected Leaders.

The encroachment on the Arizona legislature’s

responsibilities and powers has- only been

exacerbated by the Ninth Circuit's inflexible

approach to the modification of the injunction. The

Ninth Circuit failed to consider whether an

injunction could even be obtained under current

factual circumstances or under current law. Pet.

App. 63a. In particular, it refused to consider

changed factual circumstances owing to the Arizona

Legislature’s newly-adopted accountability standards

and increased spending for education under HB

2064, and similarly refused to consider changed

federal legal requirements under NCLB. Id. In so

doing, the Ninth Circuit disregarded this Court’s

guidance with regards to employing a “flexible

standard” for the modification of injunctions and

consent decrees, and instead improperly allowed the

District Court to choose a particular public policy for

addressing a core state function.

Reversal of the lower courts’ rulings by this

Court is necessary to reassert the inherent limits of

federal district courts’ equitable powers. In Rufo,

this Court observed that “the public interest and

‘[clonsiderations based on the allocation of powers

within our federal system,’ ...require that the district

court defer to local government administrators, who

35

have the ‘primary responsibility for elucidating,

assessing, and solving’ the problems of institutional

reform, to resolve the intricacies of implementing a

decree modification.” Rufo, 502 U.S. at 392 (quoting

Dowell, 498 U.S. at 248 and Brown, 349 U.S. at 299).

The Ninth Circuit’s inflexible approach enables

district courts to disregard principles of federalism by

failing to defer to states’ discretionary authority in

providing public education. As a result, the Arizona

legislature has been deprived of the most effective

methods of satisfying federal requirements—namely

through implementing policies emphasizing

performance standards and financial accountability.

This Court must once again recognize that the

federal judiciary cannot go it alone in formulating a

one-size-fits-all regime whereby more. spending,

coupled with little else by way of accountability and

performance-based standards, is the law of the land.

Instead, the Court should return the authority to

make local public education decisions to its rightful

owners—-those legislators and local officials who are

entrusted by parents and taxpayers to make such

decisions. The Arizona legislature has held fast to its

understanding that it takes more than simply money

to accomplish the multifaceted goals of a successful

ELL system. The legislature has refused to cave to

the enticing allure of simply “throwing money” at the

problem. Instead, the legislature has carefully

examined other approaches, in addition to absolute

spending, that the state may adopt to best meet the

federal compliance mandates while reaching its own

educational goals. The Court should reward these

efforts; not discourage them.

36

IV. Petitioners Have Standing to Appeal the

Rulings of the Lower Courts in this

Matter.

Finally, ALEC is compelled to briefly address

the Ninth Circuit’s questions regarding the Arizona

legislature’s standing in this matter. The Ninth

Circuit noted that plaintiffs had challenged “the

standing of the two Legislative Intervenors, as they

speak only for themselves and do not represent the

legislature as a whole, have no judgment against

them, and no apparent direct interest in the

judgment outside of an abstract policy interest.”

Flores v. Arizona, 516 F.3d 1140, 1165 (9th Cir.

2008). While the Ninth Circuit went on to dismiss

the issue of standing (“[pjarties need not have

standing to intervene in our circuit’), it did so only

after claiming that “the extent and degree of the

standing of individual legislatures under these

circumstances is in very serious question.” Jd.

This statement is perplexing. There is no

question that the Speaker of the Arizona House of

Representatives and the President of the Arizona

Senate intervened here not as “individual

legislators,” but rather as the duly-appointed leaders

of their respective legislative bodies. See JA 80-85.

Thus, Raines v. Byrd, 521 U.S. 811, the case relied on

by the Ninth Circuit as raising this “serious

question” of standing, is inapplicable on these facts.

In Ratnes, the appellees were six individual members

of Congress, and they brought their action

unquestionably as individual members. Id. at 821.

In holding that the individual members lacked

standing, the Court explicitly emphasized “the fact

that appellees have not been authorized to represent

37

their respective Houses of Congress in this action,

and indeed both Houses actively oppose their suit.”

Id. at 829.

The opposite is the case here. Both the

Speaker of the Arizona House of Representatives and

the President of the Arizona Senate have been

authorized to represent their respective legislative

bodies, and the legislature supports their actions in

appealing the lower courts’ rulings. See JA 80-85.

The only question, then, is whether Arizona’s

legislative bodies have standing. Of this there can be

no doubt. See Warth v. Seldin, 422 U.S. 490, 498,

(the question of standing concerns whether the

litigant has a stake in the outcome and whether the

litigant “is entitled to have the court decide the

merits of the dispute or of particular issues”). There

is no question that the Arizona legislature has a

stake in the outcome of this matter. Under the

District Court’s December 16, 2005 order, the

legislature was given a series of deadlines by which

to comply with the District Court’s ELL funding

mandates. Failure to meet these deadlines resulted

in escalating fines levied directly against the Arizona

legislature, culminating with fines of up to $2 million

per day if the legislature was not in compliance after

the close of the 2006 legislative session. Faced with

these escalating fines — relating to an injunction from

a case to which the legislature was not even a party —

the Arizona legislature intervened on March 8 2006.

In short, the legislature is precisely the party

to respond to the direct threat of millions of dollars in

daily fines, as well as to the indirect attacks on its

legislative efforts and authority. This is why the

legislature properly intervened in the first place, and

38

why the legislature, through its duly-appointed

leaders, has standing to appeal the lower courts’

decisions. This matter has therefore properly been

brought before the Court by petitioners.

CONCLUSION

This case has nationwide ramifications for

federalism and separation of powers. ‘The Ninth

Circuit has departed from this Court’s “flexibic

standard” to modifying injunctions and consent

decrees, and is refusing to accord state elected

officials deference in making complex public policy

choices. Such a ruling paves the way for increasingly

rigid injunctions and consent decrees, issued against

state and local government institutions, based upon

novel readings of federal law that are grounded more

in district court policy preference than

straightforward readings of federal statutes.

Further, such an exercise of judicial power will

increase the temptation by political factions to seek

relief from the courts that they were unable to obtain

in the political process. The consequences of such

moves are, of course, manifest and negative for the

courts and the political system.

Reversal of the Ninth Circuit’s ruling is

especially important given its impact in the realm of

public education. ALEC firmly believes that

standards and accountability are crucial to public

educational success. The ability of legislators to take

state and local dynamics into account while setting

educational policy is undermined by inflexible

district court decrees and injunctions unreflective of

changes in factual circumstances or law. The ability

of states to adopt innovative new approaches to

providing education is diminished when district

39

courts micro-manage educational policy, especially if

spurred on by one political faction or another. As

such, ALEC respectfully requests that the Court

grant the relief requested by petitioners.

Respectfully submitted,

ROBERT O’BRIEN

Counsel of Record

JONATHAN E. PHILLIPS

ARENT FOX

555 West Fifth St., Fl. 48

Los Angeles, CA 90013-1065

(213) 443-7512

SETH L. COOPER

AMERICAN LEGISLATIVE

EXCHANGE COUNCIL

1101 Vermont Ave, NW, FI1.11

Washington, DC 20005

(202) 742-8524

Counsel for Amicus Curiae

APPENDIX

la

APPENDIX

ALEC’s Resolution on the Federal Consent

Decree Fairness Act

PURPOSE: Urging Congress to enact the Federal

Consent Decree Fairness Act to ensure that federal

consent decrees are narrowly drafted, limited in

duration, and respectful of state and local interests

and policy judgments.

WHEREAS, in a growing number of cases involving

state and local governments across the nation,

consent decrees have become a means by which

federal judges make policy decisions that are best left

in the hands of state and local officials; and

WHEREAS, consent decrees can remain in place for

decades and lock-in policies that were agreed to by

state and local officials who are no longer in office;

and

WHEREAS, newly-elected state and local officials

often inherit overbroad or outdated consent decrees

that limit their ability govern and respond to the

priorities and concerns of their constituents; and

WHEREAS, existing procedures discourage current

state and local officials from trying to modify or

terminate a consent decree, even where such a decree

no longer represents the best approach for local

communities; and

WHEREAS, in one recent example, reforms to

Tennessee's Medicaid program — proposed by the

2a

governor and approved by the state legislature in

2004 — were blocked in federal court because they ran

afoul of consent decrees dating back to 1979, and only

some of the reforms were permitted to go forward,

resulting in increased costs for taxpayers and the loss

of coverage for many Medicaid enrollees; and

WHEREAS, in another example, consent decrees

have forced the Los Angeles County Metropolitan

Transit Authority to spend 47 percent of its budget

on buses, leaving just over half the budget to pay for

the county's remaining transportation needs; and

WHEREAS, in a further example, special education

in New York City has been governed by a consent

decree since 1979, thwarting efforts by successive

mayors and schools chancellors to implement new

reforms and updated policies for implementation of

the Individuals with Disabilities Education Act

(IDEA); and

WHEREAS, in Frew v. Hawkins, 540 U.S. 431

(2004), the U.S. Supreme Court — while upholding

the consent decree in question — expressed its

concern that consent decrees may “improperly

deprive future officials of their designated legislative

and executive powers,” which may lead to “federal

court oversight of state programs for long periods of

time even absent an ongoing violation of federal

law.”; and

WHEREAS, the Federal Consent Decree Fairness

Act, now pending in Congress, is bipartisan

legislation that addresses weaknesses in the current

3a

system while preserving consent decrees as a

mechanism for settling legal disputes; and

WHEREAS, the Federal Consent Decree Fairness

Act provides a three-pronged approach to address

these weaknesses by: (1) allowing a state or local

government to file a motion in federal court to modify

or vacate a consent decree after four years or after

the state or local official who provided consent leaves

office, whichever comes sooner; and (2) after a motion

to modify or vacate a consent decree has been filed,

shifting the burden of proof to the plaintiffs to

demonstrate why management of a program should

continue to rest with the court rather than be

returned to hands of elected officials; and (3) setting

out a series of findings, based on the U.S. Supreme

Court’s decision in Frew, to provide guidance to

federal courts to ensure that for future consent

decrees are narrowly drafted, limited in duration,

and respectful of state and local interests and policy

judgments; and

WHEREAS, this legislation goes to the very heart of

democracy, in that citizens are entitled to elect state

legislators and other leaders to make policy decisions

and do the business of governing, and federal judges

are neither public policy experts nor accountable to

the electorate for the choices they make.

THEREFORE, BE IT RESOLVED, that the

American Legislative Exchange Council supports the

principle that federal consent decrees should be

narrowly drafted, limited in duration, and respectful

of state and local interests and policy judgements;

and

4a

BE IT FURTHER RESOLVED, that Congress

should enact the Federal Consent Decree Fairness

Act.

Adopted by ALEC's Civil Justice Task Force at the

Annual Meeting July 20, 2006. Approved by the

ALEC Board of Directors August, 2006.