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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008

## Text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0211%3A17. Public record. Not legal advice.