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

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Nos. 08-289, 08-294

In The

Supreme Court of the Gnited States

THOMAS C. HORNE, SUPERINTENDENT OF

PUBLIC INSTRUCTION OF THE STATE OF ARIZONA,

and

SPEAKER OF THE ARIZONA

HOUSE OF REPRESENTATIVES AND

PRESIDENT OF THE ARIZONA SENATE,

Petitioners,

MIRIAM FLORES, IN DIVIDUALLY AND AS

PARENT OF MIRIAM FLORES, MINOR CHILD;

ROSA RZESLAWSKI, INDIVIDUALLY AND AS

PARENT OF MARIO RZESLAWSKI, MINOR CHILD;

STATE OF ARIZONA; AND MEMBERS OF THE

ARIZONA STATE BOARD OF EDUCATION

IN THEIR OFFICIAL CAPACITIES,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Ninth Circuit

BRIEF OF CIVIL RIGHTS ORGANIZATIONS AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

*NINA PERALES ROGER L. RICE

DAVID G. HINO.OSA JANE E. LOPEZ

MEXICAN AMERICAN MULTICULTURAL EDUCATION,

LEGAL DEFENSE AND TRAINING & ADVOCACY,

EDUCATIONAL FUND (META Inc.)

110 Broadway St., Suite 300 240A Elm St., Suite 22

San Antonio, TX 78205 Somerville, MA 02144

(210) 224-5476 (617) 628-2226

*Counsel of Record

[Additional Counsel Listed On Inside Cover]

CUCKLE LAW SRIEF PRINTING CO (&00) 225-6964

OR CALL COLLECT 1402) 342.2841

CESAR A. PERALES

JOSE PEREZ

DIANA SEN

LATINOJUSTICE PRLDEF

99 Hudson Street, 14th Floor

New York, NY 10013

(212) 219-3360

JOHN T. AFFELDT

TARA KINI

PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

San Francisco, CA 94105

(415) 431-7430

DANIEL R. ALONSO

W. STEWART WALLACE

MICHAEL DENVIR

KAYE SCHOLER LLP

425 Park Avenue

New York, NY 10022

(212) 836-8000

Atiorneys for Amici

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST...............csccccssresssseee 1

EE a aT eee 2

STATUTORY BACKGROUND ............ cece eeeeeeee 4

I. The Equal Educational Opportunities Act... 4

II. The No Child Left Behind Act..................... 7

SUMMARY OF ARGUMENT ........00............002220000 11

ITE ininciitesiiebeiasadnadsanabaniceniababbiananuiienbeoniies 12

I. Congress Never Intended for NCLB to

Preclude Civil Rights Actions Brought Un-

ee Se iiiiehieitcttnilierseiiiiiiniiitciiceintiiieiaiesaiiabeiniiy

A. There is no Evidence of Congressional

Intent in NCLB to Preclude EEOA

I a

Congress Never Considered the

Private Right of Action Under the

ee iecielgeapiiianetndenduammtembenesdiainedhedites

The Courts Have Developed a

Working Definition of “Appropriate

Action” That Fulfills the Purpose of

ITT sen abcisisladniceddiueasiomenianseess

B. NCLB and the EEOA Work in Har-

C. Congress Never Intended to Repeal or

Otherwise Preclude Actions Under the

EEOA for Individuals Against States...

TABLE OF CONTENTS -— Continued

Page

II. Petitioners Overstate the Operation and

Remedial Scheme of NCLB. ......................... 21

A. NCLB is Subject to Re-authorization... 22

B. Petitioners Concede Various Aspects of

“Appropriate Action” Under the EEOA

Were Neither Required by NCLB Nor

Approved by the USDOE ...................... 23

C. In Contrast to the EEOA, NCLB Does

not Address Equal Opportunity for All

Parts of an Educational Program ......... 24

D. The Accountability Provisions of NCLB

Exclude Thousands of ELL Students... 25

1. NCLB’s Provisions Exclude Large

Numbers of ELL Students due to

Grade Exclusion ............................... 27

2. When There are Fewer Than 40

Students in the ELL Group, Ari-

zona ELL Students Are Excluded

for Accountability Purposes ............. 29

3. Arizona’s Application of a 99% Con-

fidence Level Further Excludes

ELL Students for Accountability

PE vicisiinderindeciisnienenintiinimaiadiaidiiiain 32

4. The Meaning of “Making Adequate

Yearly Progress” Does not Necessar-

ily Equate to Success for all ELL

RS ic SOME Sot TATE Ie AO ed 34

ili

TABLE OF CONTENTS -— Continued

Page

5. Not all School Districts with ELL

Students Participate in Title III

PUIG FUG OEIG 20000 000cesccsessessceccesses 36

E. Many ELLs Who are Failing to Dem-

onstrate Proficiency on State Assess-

ments are in Districts and Schools

Satisfying all the Accountability Re-

GUT ORROEED GE TOURED ccccsscccscsccesccsssccsese: 37

Ill. Petitioners’ Interpretation of the EEOA

Would Embroil the Court in Oversight of

TABLE OF AUTHORITIES

Page

CASES

American Hosp. Ass’n v. NLRB, 499 U.S. 606

CIE ccsinncrsicnccsscsducenishidiiiiciusisiamunisitnaaacnmammaan aan 14

Castaneda v. Pickard, 648 F.2d 989 (5th Cir.

TITEL D ninssconieceissiinisseiunigiaedidiabaguiadiiaaad earn 14, 16, 22, 25

Erlenbaugh v. United States, 409 U.S. 239

CIRO TED ccscnccnmasccvanintinsiscssnisienssidaaieiiesiadaisaieaeasss nn 17

Fitzgerald v. Barnstable, 129 S. Ct. 788

GD ccieoiciiictininiasiitaliieninaiiinianial een 13, 16, 17, 21

Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008) ......... 2

Gomez v. Illinois State Bd. of Education, 811

* 8 Jy, Ee Bs Nene 14, 16

Harrison v. PPG Indus., 446 U.S. 578 (1980)............ 15

Herman & MacLean v. Huddleston, 459 U:S.

EO CR ncnscccincsksciccccakecoveecesssatummamaneaneeeeee 21

Idaho Migrant Council v. Bd. of Education, 647

aes Ge Ce CR, SIRE) ccsvncsninccntevccicdeddiedtaemmmeann 16

Lau v. Nichols, 414 U.S. 563 (1974).......... ccc eee eee 5,6

Morton v. Mancari, 417 U.S. 535 (1974)......0......... 13

Newark Parents Ass’n v. Neward Pub. Sch., 547

f£ BB: > ts S eee 10

Pennsylvania R.R. v. Sonman Coal Co., 242

Of | LG | | a mnmMMEN Desa rr Th 20

United States v. Estate of Romani, 523 U.S. 517

CD vie sscnesccstccsccocerceccnsucennscbussenmsssuebinnaeaeeaeael 17

United States v. Fausto, 484 U.S. 439 (1988)...... 19, 20

TABLE OF AUTHORITIES — Continued

Page

STATUTES

I cise ccindnnsetsdanesdinsasecescorevesess 10

EEOA as Title II to the Educational! Amend-

ments Act of 1974 (Pub. L. No. 93-380, title

ED CITED sn cccescccascccosesccnsocosscsocccesce 10, 16

EEE ES TOD 22

a cscisinanouinstensosnsosed 9

EES EE aE OE passim

ESET Oe a 7

ee 7,10

i dnsidemaien passim

EE 9

EEE ee 26, 34

ST 8, 24

a sn aneesnanesscnenannd 8

scan sanmanenisnoscseue 10

eo nndsichasvasetenases 36

os nia siaisionenecesesouasotons 9

saa ccs cscs wpibisntensnusionss 8, 26

Neen sscendunpntnncawoneioe 11, 12

EEE 10

Teen. |. os ccnssasennnecacnernsene 10

acs said iaduiiedastentnssenseesecusoessecsses 10

TABLE OF AUTHORITIES — Continued

Page

ee SE ettndncnescenignnnssnnsemnennensenmennininianinmvnduliona 10

Be: Se IIE cencitcceneinieanincnrscntennnsiensmnmmmiianmuialedl 10

a IEE seiscicistowasnninndneeonietehieacsioeumanenmmebienaiiees 10

Ae EEE nanrcinennenssniseushanseneiateaeemmentniasiomaieadl 25

Be a tt WEEE wenienennsncinsnnsennnanenannevevienitugenemenninnnanill 2

REGULATIONS

es Se ID peitnsavestanancnenisanainscenaaciopuncmncntanmncinsitins 24

A ee Oe ND scnnccncascsvensessteneiondensesnnmeumuntinds 25

73 Fed. Reg. 22020, 22022 (Apr. 23, 2008) ................ 31

LEGISLATIVE HISTORY

President Nixon, Special Message to Congress

on Equal Educational Opportunities and

School Busing, 118 Cong. Rec. 8931 (Mar. 17,

IEEE wsinesiuintinninhacndnsénianetimmnnmeninnisntaneastitininaiatindsnacenns 4,7

118 Cong. Rec. 9012 (Mar. 20, 1972).........................ee. 5

118 Cong. Rec. 28865 (Aug. 17, 1972)......................062. 6

Se eas SI ici sictedeneiesssnaiestephconenstannntasiivennnmuiaiiinl 5,6

E.R. Rep. No. 98-1336, at 3 (1DTB) .........cccscersccssseseseses 5

President Nixon, Address to the Nation on

Equal Educational Opportunities and School

Busing, 1972 Pub. Papers 425 (1972) ...................08. 4

vii

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Arizona Department of Education, Arizona’s

School Accountability System Technical Man-

ual, Vol. Il. (2004), available at http://azed.

gov/azlearns/NCLB_Technical_Manual_2003.

Arizona Department of Education, Arizona’s

School Accountability System 2006 Technical

Manual, Volume II: Adequate Yearly Progress

STITT e icisinisctsiciitinhacniicitahainaiceapeiabibeabenenealliaistsadintindiphpuiiaiehiiiasduicoest 33

Arizona Republic, An uncertain future for ‘No

Child Left Behind’ (2009), available at

http://www.azcentral.com/arizonarepublic/local/

articles/2009/01/25/20090125ednochild0O]1 ............. 23

Arizona Department of Education, Research

and Evaluation Section (Oct. 2008) ...........0....0..000- 28

Arizona Department of Education, Personal

Communication to Roger Rice, Re: 00-ADE

Data Request (Feb. 2, 2009) ............... eee eeee eee 27

State of Arizona Consolidated State Application

Accountability Workbook (July 3, 2008)........... 29, 35

California Dep’t of Educ., 2008 Adequate Yearly

Progress Report Information Guide (Nov.

2008), available at http://www.cde.ca.gov/ta/

ac/ay/documents/infoguideOS8r. pdf ...................0..065. 27

Commission on No Child Left Behind, Beyond

NCLB: Fulfilling the Promise to Our Nation's

Children (Washington, D.C.: The Aspen In-

I SINT icin co ciccdastaniadannanaiubieionicsidindanmeeitehiias 29, 32

vill

TABLE OF AUTHORITIES — Continued

Page

Kevin Carey, The Pangloss Index: How States

Game the No Child Left Behind Act (2007),

available at http://www.educationsector.org/

usr_doc/The_Pangloss_Index.pdf ......................00004 36

Erin Dillon & Andrew J. Rotherham, State’s

Evidence: What It Means to Make ‘Adequate

Yearly Progress’ Under NCLB, Education

Be itanicnisisncepteninetvsimensiennneneniatinediiientani: 29, 32

Ellen Forte Fast & William J. Erpenback,

Revisiting Statewide Educational Accouni-

ability Under NCLB, Council of Chief State

I I nino sccenisnisenunipantnnnennsoessnnditil 34

Goldwater Institute, Opting Out of No Child

I el 23

Walt Haney et al., The Education Pipeline in

the United States, 1970-2000, 10 (2004) ................ 29

The Heritage Foundation, Reforming No Child

Left Behind by Allowing States to Opt Out:

An A-Plus for Federalism (2007) ................0002- 000000: 23

Decision Letter on Request to Amend Arizona

Accountability Plan, Letter, Henry L. John-

son to Tom Horne (Sept. 15, 2005), available

at http://www.ed.gov/print/admins/lead/account/

SC ieccincctevcncecntcccenescocsasecsooses 29, 35, 40

Sen. Edward M. Kennedy, Foreword, Winter

2006 Issue, Harv. Educ. Rev. (2006), avarl-

able at http://www.hepg.org/document/9............... 23

TABLE OF AUTHORITIES — Continued

Mass. Dept. of Elementary and Secondary

Education, No Child Left Behind Title III:

Language Instruction for Limited English

Proficient & Immigrant Students Program,

available at http://www.doe.mass.eduv/ell/title

III.htm] (last visited Mar. 23, 2009)..................

National Clearinghouse for English Language

Acquisition and Language Instruction Edu-

cational Programs, The Growing Numbers of

Limited English Proficient Students 1995/

96-2005/06 (Dec. 5, 2006), available at http://

www.ncela.gwu.edu/policy/states/reports/state

data/2005LEP/GrowingLEP_0506.pdf..............

Gail L. Sunderman, The Unraveling of No

Child Left Behind: How Negotiated Changes

Transform The Law, The Civil Rights Pro-

ject, Harvard University (Feb. 2006) ................

New York State Education Department, No

Child Left Behind Allocations for Title III,

Part A For New York State Public School

Districts and Charter Schools 2006-2007

(Dec. 5, 2006), available at http://www.emsc.

nysed.gov/funding/cladcep/0607/titleIIIallocs

I. sassuedeionmmabiuapenannes

Wayne C. Riddle, CRS Report for Congress,

Education for the Disadvantaged: Reauthorit-

zation Issues for ESEA Title 1-A Under the

No Child Left Behind Act (2006) ...................0...

Page

TABLE OF AUTHORITIES — Continued

David Rogosa, Statistical Misunderstandings of

the Properties of School Scores and School

Accountability, in Yearbook of the National

Society for the Study of Education, Vol. 104,

Gre Pitecseccninenccadtnacinennesnsienininiansssscsaneniosnes

David Rogosa, The NCLB “99% confidence”

scam: Utah-style calculations, Stanford Uni-

versity (November 2003) available at http://

www-stat.stanford.edu/~rag/nclb/utahNCLB.

U.S. Dep’t of Education, Supplement Not

Supplant Provision of Title III of the ESEA,

available at _ http://ed.gov/programs/sfgp/

supplefinalattach 1.d0C .................ccccececeeceeeeceecees

U.S. Dep’t of Education, Letter to California,

(Jan. 8, 2009), available at http://www.ed.

gov/admins/lead/account/cornerstones/ca. pdf...

U.S. Dep’t of Education, Non-Regulatory Guid-

ance, Supplemental Educational Services

(2009), available at http://www.ed.gov/ pol-

icy/elsec/guid/suppsvesguid. pdf ................0.ceee ee

U.S. Dep’t of Education Office of English

Language Acquisition, Language Enhance-

ment, and Academic Achievement for Lim-

ited English Proficient Students, The

Biennial Report to Congress on the Imple-

mentation of the Title Ill State Formula

Grant Program, School Years 2004-06 (June

2008), available at http://www.ed.gov/about/

offices/list/oela/title3biennial0406. pdf ..............

Page

TABLE OF AUTHORITIES — Continued

U.S. Dep’t of Education, National Assessment

of Title I Final Report (2007) .............cccceccsseceeeeeneees 28

Warren Institute, Analysis of 2008 NCLB

Accountability for ELL Students in Califor-

nia, available at http://www.law.berkeley.

iiccciicinsinciedimmcasadensenathassinntecias 28, 30, 38

Wayne E. Wright, Education Policy Study

Laboratory, Language Policy Research Unit

(LPRU), Evolution of Federal Policy and

Implications of No Child Left Behind for

Lar guage Minority Students (Arizona State

University) (January 2005), available at http://

epicpolicy.org/files/EPSL-0501-101-LPRU _pdf....... 30

STATEMENT OF INTEREST'

Amici are various civil rights organizations and

public interest centers whose efforts include litiga-

tion, public policy and general advocacy to protect the

civil rights of persons to equal educational opportuni-

ties. The amici include the Mexican American Legal

Defense and Educational Fund (MALDEF), the

Multicultural Education, Training & Advocacy,

(META) Inc., LatinoJustice PRLDEF (formerly

known as the Puerto Rican Legal Defense and Educa-

tion Fund), Public Advocates, the Earl Warren Insti-

tute on Race, Ethnicity & Diversity and the

Education Law Center. Each amicus has experience

in securing the rights of English Language Learner

(“ELL”) students to access appropriate language

programs and has a substantial interest in the out-

come of this case. The individual statements of inter-

est of all amici appear in the Appendix.

' Respondent Flores filed a letter consenting to the filing of

this brief with the Clerk of the Court. Respondent State of

Arizona and Petitioners have signed letters consenting to the

filing of this brief and those letters are being filed with the Clerk

of the Court. Counsel for a party did not author this brief in

whole or in part. No person or entity, other than amici, their

members, or their counsel, made a monetary contribution to the

preparation or submission of this brief.

INTRODUCTION

This is a school finance case involving how Ari-

zona finances public education for ELL students. As

the court of appeals summarized, “The particulars of

Arizona’s school funding system are therefore at the

heart of this case.” In sum, the district court issued a

series of orders requiring Arizona to conduct a study

of the costs of educating ELL students and to fund

programs rationally related to the costs required for

those students. Arizona’s most recent response to

these orders is an enactment known as HB 2064,

which the court of appeals has found to have two

specific flaws.”

Amici file this brief focusing on Petitioners’ far-

reaching argument that Arizona’s compliance with

provisions of the Elementary and Secondary Educa-

tion Act (the “No Child Left Behind Act” or “NCLB”)

satisfies their obligation to take “appropriate action”

under the Equal Educational Opportunities Act

(“EEOA”). Petitioners advance baseless arguments by

* Flores v. Arizona, 516 F.3d 1140, 1147 (9th Cir. 2008). The

detailed history of the litigation is found in the opinion of the

court of appeals. Jd. at 1140-1154.

* The court found that the “clearest violation of federal law”

pertained to the state’s violation of 20 U.S.C. § 7902 which

provides that in determining a school district’s eligibility for

state aid, a state may not take into account federal funds. /d. at

1178. Petitioners did not address the 20 U.S.C. § 7902 issue in

their briefs. The court of appeals also found that a two-year

limitation on state ELL aid was irrational. Amici agree with the

court on both counts.

misreading provisions of NCLB in a way that under-

cuts 30 years of federally-protected civil rights for

millions of ELL school children across the country. As

of the 2005-2006 school year, there were more than

five million ELL students attending schools in the

U.S., a 57.17% increase over the past decade.*

While Petitioners supposedly seek judicial non-

interference with local control, the implications of

their argument would plunge the federal courts into

greatly expanded involvement in day-to-day educa-

tional policy decisions. Amici respectfully request

that the Court refuse this intrusive invitation and

affirm the decision of the courts below.

* National Clearinghouse for English Language Acquisition

and Language Instruction Educational Programs, The Growing

Numbers of Limited English Proficient Students 1995/96-2005/06,

available at http://www.ncela.gwu.edu/policy/states/reports/state

data/2005LEP/GrowingLEP_0506.pdf. Spanish is the language

of approximately 80% of these students. U.S. Dep’t of Education

Office of English Language Acquisition, Language Enhance-

ment, and Academic Achievement for Limited English Proficient

Students, The Biennial Report to Congress on the Implementa-

tion of the Title II] State Formula Grant Program, School Years

2004-06 (June 2008), avatlable at http://www.ed.gov/about/offices/

list/oela/title3biennial0406. pdf.

STATUTORY BACKGROUND

I. The Equal Educational Opportunities Act

The EEOA was born from President Nixon’s

address to the nation on March 16, 1972, in which he

proposed a new law that “would further establish an

educational bill of rights for [those] who start their

education under language handicaps, to make certain

that they, too, will have equal opportunity.” President

Nixon, Address to the Nation on Equal Educational

Opportunities and School Busing, 1972 Pub. Papers

425 (Mar. 16, 1972).

President Nixon affirmed that this goal could

only be achieved if ELL students are included in the

learning process: “School authorities must take

appropriate action to overcome whatever language

barriers might exist, in order to enable all students to

participate equally in educational programs.” Presi-

dent Nixon, Special Message to Congress on Equal

Educational Opportunities and School Busing, 118

Cong. Rec. 8931 (Mar. 17, 1972). He further clarified

that the educational opportunity afforded to all

schoolchildren must “not only [be] equal, but ade-

quate.” Jd.

Days later, the EEOA was introduced in the U.S.

House of Representatives and stated that “[n]o state

shall deny equal educational opportunity to an indi-

vidual on account of his race, color, or national origin,

by ... the failure by an educational] agency to take

appropriate action to overcome language barriers

that impede equal participation by its students in its

instructional programs.” 118 Cong. Rec. 9012 (Mar.

20, 1972); H.R. 13915 § 201(f). Regarding the EEOA’s

explicit requirement that states eliminate language

barriers for ELL students, the committee hearing the

bill explained:

{T]he committee bill for the first time in Fed-

eral Law contains an illustrative definition of

a denial of equal educational opportunity. It

is the purpose of that definition ... to pro-

vide school and governmental authorities

with a clear delineation of their responsibili-

ties to their students and employees and to

provide the students and employees with the

means to achieve enforcement of their rights.

House Comm. on Educ. and Labor, H.R. Rep. No. 92-

1335, at 3 (1972).

The Committee recognized that the statute,

among other purposes, was designed to ensure that

ELL students received equal educational opportuni-

ties. “As President Nixon has stated, these children

will not have true equality of educational opportunity

until these language .. . barriers are removed.” Jd. at

6. Speaking prior to this Court’s decision in Lau uv.

Nichols, 414 U.S. 563 (1974), Rep. Veysey recognized

that the EEOA:

establishes for the first time an express re-

quirement that schools take affirmative ac-

tion to overcome language barriers that

impede equal participation by students. This

provision especially aids [those] whose lan-

guage and cultural barriers have been ignored

for far too long. Provisions like this are es-

sential to achieving true equality of educa-

tional opportunity for all our citizens.

118 Cong. Rec. 28865 (Aug. 17, 1972).°

Congress ultimately enacted the EEOA as Title II

to the Educational Amendments Act of 1974 (Pub. L.

No. 93-380, title II, 58 Stat. 515 (1974)), shortly after

this Court’s decision in Lau v. Nichols, 414 U.S. 563

(1974). There, the Court stated:

Basic English skills are at the very core of

what these public schools teach. Imposition

of a requirement that, before a child can ef-

fectively participate in the educational pro-

gram, he must already have acquired those

basic skills is to make a mockery of public

education. We know that those who do not

understand English are certain to find their

classroom experiences wholly incomprehen-

sible and in no way meaningful.

Id. at 569 (1974) (citing, inter alia, Office of Civil

Rights regulations and policies requiring school

districts to take affirmative steps to rectify English

language deficiencies of their students so that they may

participate effectively in public educational programs).

Congress also included an enforcement compo-

nent, providing a private right of action for students

to enforce their civil rights when states or school

* The 1972 bill, as set forth in H.R. 13915, passed the

House, but was ultimately defeated in the Senate.

districts fail to take “appropriate action” to remove

existing “language barriers.” 20 U.S.C. § 1706. Con-

gress’ inclusion of a private right of action to allow

ELL students to bring suit to remove language barri-

ers reflects Congress’ recognition that the EEOA

established for the courts, in President Nixon’s words,

a “new and broader base on which to decide future

cases” involving educational civil rights. President

Nixon, Special Message to Congress on Equal Educa-

tional Opportunities and School Busing, supra.

II. The No Child Left Behind Act

NCLB is an educational funding authorization

statute that requires states that accept federal funds

under the Elementary and Secondary Education Act

(“ESEA”) for public education to comply with certain

accountability measures designed to improve “the

academic achievement of all students.” 20 U.S.C.

§ 6301(4). The major provisions addressing ELL

academic achievement are Titles I and III, which

contain an overlapping accountability framework for

monitoring ELL educational progress in English

Language Arts (“ELA”) atid math.

Title I requires that districts and schools, as a

condition of receipt of Title I funds, make “Adequate

Yearly Progress” (“AYP”) for all students, including

for various identified subgroups, such as ELLs. AYP

is primarily determined by the percentage of students

overall, as well as in each subgroup, who score “profi-

cient” on state ELA and math assessments. 20 U.S.C.

§ 6311(b\(2)(B)-(C).

Title III of NCLB, a statutory grant program

known as the English Language Acquisition, Lan-

guage Enhancement and Academic Achievement Act

(“Title III”), is specifically designed to provide funds

to “help ensure that children who are limited English

proficient ... attain English proficiency ... and meet

the same challenging State academic content and

student achievement standards as all children are

expected to meet.” 20 U.S.C. §6812(1). Title III

grants aid to states upon receipt of plans approved by

the federal government. See id. at §§ 6821-6826. Title

III incorporates Title I AYP accountability for ELLs

by requiring that Title III-funded districts meet AYP

for ELLs, in addition to meeting objectives demon-

strating ELL progress in learning English. 20 U.S.C.

§ 6842(a).°

The text of NCLB demonstrates that Title III was

conceived to act as a gradual means to improve ELL

achievement in English and mathematics. 20 U.S.C.

§§ 6311(b\(2)-(3), 6842(a)(3). In contrast to the imme-

diate, rights-based framework of the EEOA, NCLB’s

accountability measures that require adequate yearly

progress for ELL children threaten only removal of

* However, the parental accountability and program

improvement provisions of Title I do not apply to the progress in

learning English provisions of Title III.

federal funding. Indeed, the statute merely authorizes

and does not guarantee federal funding for these

programs; its effectiveness is thus tied to available

funds.

As a result, Title III specifically instructs that

federal funds provided to states under NCLB shall be

used only to “supplement” funds already earmarked

by states for ELL programs; supplanting pre-existing

public funds is prohibited. 20 U.S.C. § 6825(g). 20

U.S.C. § 6314(a)(2)(B) expressly states that:

A school participating in a schoolwide pro-

gram shall use funds available to carry out

this section only to supplement the amount

of funds that would, in the absence of funds

under this part, be made available from non-

Federal sources for the school, including

funds needed to provide services that are re-

quired by law for children with ... limited

English proficiency.

Id. The statute goes on specifically to state that a

“school that chooses to use funds from such other

programs shall not be relieved of the requirements

relating to .. . civil rights [and] uses of Federal funds

to supplement, not supplant non-Federal funds... .”

Id. § 6314(a\(3)(B). Violation of this requirement may

lead to the loss of all federal funds. Jd. § 1234(a)-(i).

Likewise, the predecessor of Title III, the Bilingual

Education Act, contained similar “supplement” not

“supplant” funding requirements which persisted

through five amendments over three decades, attest-

ing to Congress’ long-standing, consistent dedication

to ensuring that states honor their educational civil

rights obligations to their students independently of

Title III or its predecessor statute.’

NCLB expressly states that it does not amend or

repeal any statutes other than the ESEA. 20 U.S.C.

§ 6301. Furthermore, the text of both Title III of

NCLB and its predecessor show that they are meant

to work in conjunction with other ELL programs

administered by the Department of Education to

maximize federal efforts aimed at serving ELL chil-

dren.”

NCLB also has purely administrative mecha-

nisms for remedying state and local deficiencies in

meeting its standards. See Newark Parents Ass’n v.

Newark Pub. Sch., 547 F.3d 199, 209 n.5 (3d Cir.

2008). At the same time, it contains a savings clause:

“Nothing in this part shall be construed in a manner

” Under the Bilingual Education Act, federal funds were

required to be allocated to supplement and, to the extent

practicable, increase the level of state and local funds made

available — but in no case supplant such funds. See Public Law

90-247 (Jan. 2, 1967), § 705(a)(4); Public Law 93-380 (August 21,

1974), § 721(b\(3)(A); Public Law 95-561 (Nov. 1, 1978), § 721

(b3G); Public Law 98-511 (Oct. 19, 1984), § 721(f4); Public

Law 100-297 (Apr. 28, 1988), § 7032(e); Public Law 103-382

(1994), §§ 7116(h)(4), 7134(f).

* See 20 U.S.C. §§ 6823, 6913, 6914, 6951, 6965, 6983;

Public Law 100-297, Sec. 7051 (Apr. 28, 1988). Coordination of

Title VII education programs with other programs, including the

Goals 2000: Educate America Act and other Acts to “secure the

most flexible and efficient use of Federal funds” was also

envisioned. See id. at § 7121.

inconsistent with any federal law guaranteeing a civil

right.” 20 U.S.C. § 6847.

SUMMARY OF ARGUMENT

Congress never intended for a state’s compliance

under NCLB to substitute for an obligation under the

EEOA to take appropriate action to overcome lan-

guage barriers. Petitioners fail to cite any legislative

history of NCLB to indicate such congressional intent

or any intent to eliminate ELL students’ private right

of action to sue states under the EEOA. On the

contrary, Congress expressly noted its intent to

preserve ELL students’ private right of action by

including a savings clause in NCLB for protection of

civil rights under federal laws, such as the EEOA.

Furthermore, NCLB is not the all-encompassing,

comprehensive statute suggested by Petitioners.

NCLB is a statute whose authorization has lapsed

and whose future is unknown. Nonetheless, Petition-

ers ask this Court to equate the EEOA to the current

version of NCLB, which neither covers the entire

instructional program nor requires “appropriate

actions” such as trained English as a Second Lan-

guage teachers or state monitoring of ELL programs.

Under NCLB, nearly half the ELL students in Ari-

zona and California are not counted for accountability

purposes because they are in grades K-2 or 9, or

found in subgroups of fewer than 40 (or, in California,

100) or attend high schools which do not receive

ESEA/NCLB funding. The use of various statistical

devices allows schools and the State of Arizona to

meet AYP under NCLB even though most of their

ELL students are not proficient in reading or mathe-

matics. For that subset of schools not receiving Title I

federal funding and for Title III-funded districts

gencrally, the parental accountability requirements of

the NCLB do not apply.

Finally, Petitioners unnecessarily invite the

federal courts to become embroiled in detailed over-

sight of what it means to comply with NCLB statute.

Should the Court accept Petitioners’ argument,

federal judges will be tasked with the responsibility

of determining whether varying degrees of NCLB

“compliance” among the states meet the statutory

requirements and Congressional intent of NCLB

and whether states are taking appropriate action

under the FEOA.

ARGUMENT

I. Congress Never Intended for NCLB to

Preclude Civil Rights Actions Brought

Under the EEOA

In drafting NCLB, Congress inserted a savings

clause to preserve existing civil rights under other

federal laws, including the right of ELL students to

equal educational opportunities under the EEOA. See

20 U.S.C. § 6847. Nevertheless, Petitioners ask the

Court to conclude that Congress chose to allow states

to comply with NCLB instead of requiring appropri-

ate action under the EEOA without Congress saying

so. Such an interpretation would erroneously lead to

the repeal of the ELL individual’s right of action

under the EEOA against state defendants. Such

repeals are disfavored. See Morton v. Mancari, 417

U.S. 535, 549 (1974). Indeed, this Court has stated

repeatedly that the central question in deciding

whether one statute precludes a cause of action in a

preceding statute is whether Congress intended it to

do so. Fitzgerald v. Barnstable, 129 S. Ct. 788, 793-94

(2009). Petitioners have failed to present any cogent

argument or evidence demonstrating such congres-

sional intent.

A. There is no Evidence of Congressional

Intent in NCLB to Preclude EEOA

Causes of Action

The crux of Petitioners’ argument is that Con-

gress enacted NCLB to fulfill the obligations of states

to take “appropriate action” under the EEOA. How-

ever, Petitioners’ argument contradicts basic canons

of statutory interpretation because Petitioners cannot

point to any evidence that Congress ever considered

the EEOA’s requirements when drafting and adopting

the NCLB —- with the lone exception, vitiating Peti-

tioners’ position, of Congress’ inclusion of its savings

clause in NCLB. In addition, the EEOA’s private right

of action has allowed the lower courts to develop

standards for measuring “appropriate action” under

the EEOA congruent with its principal purpose of

protecting the civil rights of ELL students to access

equal educational opportunities and overcome lan-

guage barriers. See, e.g., Castaneda v. Pickard, 648

F.2d 989, 1009 (5th Cir. 1981); Gomez v. Illinois State

Bd. of Education, 811 F.2d 1030 (7th Cir. 1987).

Despite this well-established precedent, there exists

no evidence that Congress ever considered undoing

these recognized and accepted judicial standards in

enacting NCLB.

1. Congress Never Considered the

Private Right of Action Under the

EEOA

Petitioners do not argue that Congress ever

debated the merits or the history of the EEOA's

private right of action when enacting NCLB. Instead,

Petitioners rely on the converse: that by never men-

tioning the EEOA or “appropriate action,” Congress

must have intended to allow states to satisfy their

obligations under the EEOA by meeting the require-

ments outlined in NCLB. This argument turns statu-

tory construction canons on their head and finds no

support in the cases cited by Petitioners.

This Court has refused to draw inferences about

Congress’ intent to repeal preceding statutes when

Congress fails even to mention the purported change

in the legislative history of the successive statute.

See, e.g., American Hosp. Ass’n v. NLRB, 499 U.S.

606, 613-14 (1991) (“If this amendment had been

intended to place the important limitation on the

scope of the Board’s rulemaking powers that peti-

tioner suggests, we would expect to find some expres-

sion of that intent in the legislative history.”) (citing

Harrison v. PPG Indus., 446 U.S. 578, 602 (1980) (“In

a case where the construction of legislative language

such as this makes so sweeping and so relatively

unorthodox a change as that made here, I think

judges as well as detectives may take into considera-

tion the fact that a watchdog did not bark in the

night.”)) As in the cases cited above, Petitioners

reference no legislative history of NCLB indicating

Congress’ intention to sweep away the EEOA’s pri-

vate right of action against states.

2. The Courts Have Developed a

Working Definition of “Appropriate

Action” That Fulfills the Purpose of

the EEOA

Petitioners also wrongly assert that the Court

should substitute the remedial scheme in NCLB for

the obligations of states under the EEOA because the

term “appropriate action” is ambiguous and therefore

must be interpreted under the NCLB statute. NCLB

and ESEA are not the same or even “successive”

statutes amending the ESEA.” In fact, the ESEA

* The EEOA is Title II to the Education Amenéments of

1974 but it did not amend the Elementary and Secondary

Education Act of 1965. Title I of the ESEA is specifically named

“Amendments to the Elementary and Secondary Education Act

(Continued on following page)

existed both before and after the EEOA, the statutes

were codified under different chapters, and both have

existed harmoniously for 35 years. Furthermore,

Petitioners’ interpretation defeats Congress’ purpose

for the EEOA, which is to require states and educa-

tion agencies to take “appropriate action” in address-

ing the needs of ELL students and to provide an

avenue for judicial redress. As this Court has stated,

courts must interpret statutes in a manner that

fulfills the intent of Congress. Fitzgerald, 129 S. Ct.

at 788. The lower courts have assumed this task and

developed a working definition of “appropriate ac-

tion.”

In Castaneda v. Pickard, the Fifth Circuit devel-

oped a three-prong test in order to decide whether an

education agency has taken “appropriate action”

under the EEOA. 648 F.2d 989, 1009 (5th Cir. 1981).

The Fifth Circuit required: that ELL programs be

based on sound pedagogical] theory; that the theory be

supported with the appropriate practices, personnel

and resources; and that the programs be successful in

actually helping students to overcome their language

barriers. Jd. at 1009-1010. This test has been adopted

consistently by appellate courts across the country.

See, e.g., Gomez, 811 F.2d 1030; Idaho Migrant Coun-

cil v. Bd. of Education, 647 F.2d 69 (9th Cir. 1981).

of 1965.” Thus, the EEOA is not an amendment to ESEA but

falls under the “other purposes” language of the Act's stated

purpose. Pub. L. No. 93-380, 88 Stat. 515 (1974).

This existing body of law defining “appropriate

action” never once caused Congress to consider

amending NCLB to address the courts’ interpretation

of “appropriate action.” This further evidences Con-

gress’ intent to have the EEOA and NCLB co-exist

and the remedy under the EEOA to be unaffected. See

Fitzgerald, 129 S. Ct. at 797 (in failing to find con-

gressional intent in Title [X to repeal § 1983 claims,

the Court emphasized the importance of the state of

the law interpreting § 1983 claims when Title [IX was

enacted).

B. NCLB and the EEOA Work in Harmony

Because the EEOA and NCLB operate in tandem

to meet the needs of ELL students, there is no basis

on which to conclude that the latter statute supplants

the obligations of the former. See United States v.

Estate of Romani, 523 U.S. 517 (1998) (“we think the

proper inquiry is how best to harmonize the impact of

the two statutes”). Although two statutes may have

the same overall goal, their different roles in achiev-

ing that goal remain relevant in determining whether

one statute overrides another. See Erienbaugh uv.

United States, 409 U.S. 239 (1972) (finding that an

exception under one anti-gambling statute did not

apply to another anti-gambling statute because the

two laws served different roles although both were

aimed at stopping organized crime).

The EEOA and NCLB share part of the same

goal in enabling ELL students to become proficient in

English, and although their functions are different,

thew -omplement one another rather than conflict. As

stated above, the EEOA is a federal civil rights stat-

ute that allows individual ELL students to sue when

their state has denied them equal educational oppor-

tunities. See Statutory Background, supra. Con-

versely, NCLB is a federal funding statute that

potentially allows the federal government to withhold

funds from voluntarily participating states when they

fail to adhere to specific program requirements. See

id. However, these differences show that the statutes

are complementary rather than in conflict.”

C. Congress Never Intended to Repeal or

Otherwise Preclude Actions Under the

EEOA for Individuals Against States

Petitioners attempt to side-step this Court’s

unwillingness to repeal congressional statutes by

judicial fiat, stating that they do not seek a repeal of

* This is further evidenced by the supplement-not-supplant

provision of Title II]. The Department of Education has inter-

preted the supplement-not-supplant section as drawing a

distinction between funds from NCLB and funds which the state

must raise to comply with the EEOA. U.S. Dep’t of Education,

Supplement Not Supplant Provision of Title III of the ESEA,

available at http://ed.gov/programs/s{yp/supplefinalattach1.doc

(“This requirement is ... based on the ... [EEOA].. . Therefore,

the use [of] ... Title II] funds to provide core language instruc-

tion educational programs... would violate the supplement not

supplant provision ... as such services are required to be

provided by States and districts regardless of the availability of

Federal Title III funds.”).

the EEOA, only that they should not be held to the

EEOA’s standard of “appropriate action” in light of

NCLB’s_ specific requirements pertaining to the

education of ELL students.’ However, Petitioners’

citation to United States v. Fausto, 484 U.S. 439, 452

(1988), for their theory that “the implications of a

statute may be altered by the implications of a later

statute” is unavailing here. (See Superintendent’s Br.

at 60). Unlike the judicially-created implied action in

Fausto, the EEOA has an express cause of action;

consequently, there is no “judicial interpretation” to

repeal.

In Fausto, the Court found that Congress created

the Civil Service Reform Act “to replace the haphaz-

ard arrangements for administrative and judicial

review of personnel action, part of the ‘outdated

patchwork of statutes and rules built up over almost

a century.” Id. at 444. The Court also noted the

widespread abuse of the administrative and judicial

review processes by civil service employees. Jd. at

445. As a result, the Court found that although there

was not an express repeal of the Back Pay Act by

Congress in the CSRA, the Court repealed its own

judicial interpretation of an implied claim under the

" Oddly enough, Petitioners further proffer that ELL

students could maintain an action against a district or school

(not the state) but never explain how Congress intended such

varying results. Of course, if the problem is systemic and begins

at the state level, such an interpretation would provide no

meaningful! protection of the civil nghts of ELL children.

Back Pay Act for certain civil servants. Jd. at 453.

Here, the legislative history of NCLB provides no

indication that its purpose was to address a haphaz-

ard arrangement or widespread abuse of administra-

tive and judicial review processes under the EEOA

nor was there an implied right of action created by

the courts. As stated earlier, Congress made no

mention of the EEOA.

The lone mention of the EEOA was indirectly

through the NCLB’s savings clause, which repre-

sented Congress’ intent to preserve civil rights protec-

tions under the EEOA. Similar savings clauses

in statutes have been recognized as evidence of

Congress’ intent to preserve actions in other statutes.

See Herman & MacLean v. Huddleston, 459 U.S. 375,

383 (1983) (holding that the savings clauses in the

1933 Securities Act and the 1934 Securities Exchange

Act confirmed that the remedies in each Act were to

be supplemented by “any and all” additional reme-

dies); see also Pennsylvania R.R. v. Sonman Coal Co.,

242 U.S. 120, 123-124 (1916) (holding that, “a mani-

fest purpose of [a savings clause] is to make it plain

that such appropriate common law and statutory

remedies as can be enforced consistently with the

scheme and purpose of the act are not abrogated or

replaced”) (internal quotation omitted).

Adopting Petitioners’ argument here could lead

to countless similar preclusion defenses to other civil

rights lawsuits filed to protect the rights of students

to equal educational opportunities, including special

education and minority students who are “covered”

under the NCLB. To the contrary, the Court has

consistently found that civil rights statutes touching

upon the same or similar subject can co-exist. Fitz-

gerald, 129 S. Ct. at 788 (unanimous opinion holding

that Title [IX does not preclude § 1983 actions alleging

unconstitutional gender discrimination); see also

Herman & MacLean v. Huddleston, 459 U.S. 375, 383

(1983).

II. Petitioners Overstate the Operation and

Remedial Scheme of NCLB

Petitioners acknowledge that Section 1703(f) of

the EEOA remains a viable, individual rights secur-

ing statute, although they maintain that the thrust of

the statute does not reach to Arizona’s school funding

plans. Nonetheless, they also argue that the applica-

tion of Section 1703(f) rests on one question: Whether

Arizona receives federal funding under the NCLB.

That question grossly overstates the operation of

NCLB itself. Although NCLB has a number of com-

plex provisions and seeks to hold states accountable for

the expenditure of federal funds, it is not the all-

encompassing, comprehensive remedial scheme meant

" Petitioner Horne: “The Superintendent never claimed

that NCLB negated the EEOA.” Superintendent’s Br. 59.

Petitioner Speaker of the House: “Moreover, situations may well

arise where, although a State is in compliance with NCLB’s

mandates, particular schools or school districts engage in

individual instances of discrimination for which a court-ordered

remedy under the EEOA is ‘essential’ to correct a ‘particular

deniai [ j of equal educational opportunity.’” Legislators’ Br. 60.

to replace the EEOA as described by Petitioners. As

indicated further below, NCLB’s coverage is quite

limited and inconsistent. Congress could not have

intended that NCLB would repeal] the ability to bring

EEOA actions against states under a system where

hundreds of thousands of ELL students nationally

are simply not counted for NCLB’s purposes.

A. NCLB is Subject to Re-authorization

As pointed out above, courts have sensibly inter-

preted Section 1703(f) for 35 years. During that time

there have been numerous iterations of the ESEA,

including the changes to the Act’s provisions that

pertain to ELL students. While some courts, includ-

ing the court of appeals in the seminal Castaneda

case, have consulted those provisions to determine

the scope of Section 1703(f), no court has stated that

it could not weigh evidence of whether language

programs of any nature were being implemented by

trained teachers with access to materials for ELL

students under the monitoring authority of the state

and local education agencies (“LEAs”). In now urging

that judicial inquiry end with “NCLB compliance,”

Petitioners confront an initial dilemma. Congres-

sional authorization for funding NCLB has expired.”

How and whether the Act will be extended is

* The Act was funded for the Fiscal Year 2002 through

Fiscal Year 2007. The funding was automatically extended

through September 30, 2008, pursuant to 20 U.S.C. § 1226(a).

not known.” Yet Petitioners urge that § 1703(f) be

conflated with NCLB even in the face of NCLB’s

uncertain future. This Court should summarily reject

Petitioners’ argument.

B. Petitioners Concede Various Aspects

of “Appropriate Action” Under the

EEOA Were Neither Required by NCLB

Nor Approved by the USDOE

Petitioners implicitly acknowledge that the

“appropriate action” requirement of Section 1703(f)

requires states to do more than comply with NCLB.

For example, Superintendent Horne states: “In this

case, ‘appropriate action’ has been taken by improv-

ing ELL programming, hiring ELL qualified teachers,

and reducing class sizes.” (Superintendent’s Br. 4).

These examples of “appropriate action” taken by

Arizona are not challenged by amici. Although they

are not inconsistent with the goals of NCLB, it is

“ The Court can take note that the future is, at least,

unknown. One of the original authors of NCLB has noted: “In

the five years since its passage, however, NCLB has produced

both strong support and vociferous criticism ... Some have even

called for the act’s repeal.” Sen. Edward M. Kennedy, Foreword,

Winter 2006 Issue, Harv. Educ. Rev. (2006), available ot

http://www.hepg.org/document/9/; Goldwater Institute, Opting

Out of No Child Left Behind (2008); The Heritage Foundation,

Reforming No Child Left Behind by Allowing States to Opt Out:

An A-Plus for Federalism (2007); Arizona Republic, An uncertain

future for ‘No Child Left Behind’ (2009), available at http://

www.azcentral.com/arizonarepublic/local/articles/2009/0 1/25/2009

0125ednochild01.

instructive that these “appropriate actions” are not

required by NCLB, which does not speak to monitor-

ing, reducing class size or ELL teacher endorse-

ments.”

C. In Contrast to the EEOA, NCLB Does

not Address Equal Opportunity for All

Parts of an Educational Program

Despite ambitious language about closing the

academic achievement gap (see 20 U.S.C. § 6812(1)),

NCLB only holds schools accountable for improving

math and ELA. See 20 U.S.C. § 6311(b)(2)-(3)." By

contrast, the EEOA mandates that states ensure that

ELL students are provided with equal access to all

“instructional programs” offered by an LEA (20

U.S.C. §1703(f)), which by definition encompass

The Superintendent’s statement that: “Many of these

steps were approved by the federal government and none of

them existed before 2000” should not be taken to infer that

these actions by Arizona were required by NCLB. In fact, a

close examination of the nine transcript citations that accom-

pany the statement reveals that few are examples of the

federal government approving Arizona’s measures. Superinten-

dent’s Br. 18 referencing Tr. Day 1, pp. 36, 43, 45, 47, 50, 55, 65,

70, 158.

" The Act also requires testing in science beginning in

2007-08 (20 U.S.C. § 6311(b\X3(CXvKID), but states, districts,

and schools are not held accountable for students’ progress in

science as no specific “Annual Measurable Objective[s]” need be

set as with English and math. (20 U.S.C. §6311(bxX1)G); 34

C.FR. § 200.20).

many subjects and programs beyond math and Eng-

lish.

NCLB’s definition of “core academic subjects,”

while not exhaustive, illustrates the type of “instruc-

tional program” to which ELL students are éntitled,

defining “core academic subjects” as English, reading/

language arts, math, science, foreign languages,

civics and government, economics, arts, history, and

geography. 20 U.S.C. § 7801(11); 34 C.F.R. § 200.55(c).

Where an LEA offers these “core academic subjects”

within its “instructional programs,” under the EEOA,

it must also provide ELL students with equal access

to this academic content. See Castaneda, 648 F.2d at

1011 (§ 1703(f) requires schools to “design programs

which are reasonably calculated to enable [LEP]

students to attain parity of participation”). Under

NCLB, with its focus on English and math, a state or

LEA may meet its NCLB goals for ELL students

under Title I (AYP) and Title III (Annual Measurabie

Achievement Objectives, “AMAOs”) and yet provide

ELL students little or no instruction in other sub-

jects.

D. The Accountability Provisions of NCLB

Exclude Thousands of ELL Students

Central to NCLB’s accountability provisions is

the concept of AYP as determined by assessments of

students, including ELL students. See 20 U.S.C. § 6311.

A school that fails to make AYP for two consecutive

years is identified as needing “school improvement”

under 20 U.S.C. § 6316. Although parents of students

in such schools are provided with the option of trans-

ferring their students to another school in the district

(id. at § 6316(b)(1)(E)(i)) and may select supplemental

educational services if an identified school continues

to lag after one year (id. at § 6316(b)(5)), insofar as

Title III of NCLB is concerned, those options are not

available to parents of ELL students where annual

progress in learning English is not occurring but only

to parents at those schools that do not meet AYP.”

Since NCLB does not incorporate a private right of

action,” these limited parental options of transferring

to another school or possibly receiving supplemental

services become the only way that some but not all

parents of ELL students can attempt to mitigate the

harm to their children of unequal education.

'’ The requirement that ELL students show progress

toward learning English is different than that of the require-

ment to meet AYP in English/Language Arts. The first is meas-

ured by English language growth on a language proficiency test

for ELL students. AYP in English is the requirement for meeting

a state’s proficiency standards in English/Language Arts that is

required of all students, ELLs and non-ELLs alike. 20 U.S.C.

§§ 6311(b\ 2B), 6311(b7) & 6842(aX3\A). Additionally, not all

approved supplemental service providers are required to be able

to provide services to ELL students. See U.S. Dep’t of Education,

Non-Regulatory Guidance, Supplemental Educational Services

19-20 (2009), available at http://www.ed.gov/policy/elsec/guid/

suppsvcsguid. pdf.

" Legislators’ Br. 15.

1. NCLB’s Provisions Exclude Large

Numbers of ELL Students due to

Grade Exclusion

NCLB’s accountability provisions are focused on

grades 3-8 and grades 10-12 -— grades K, 1, 2, and 9

are not specifically considered." For the 2007-2008

school year in Arizona, 88,524 ELL students were not

considered because they are not within the grades

specified for assessment under the NCLB. Collec-

tively, these four grades accounted for approximately

50% of Arizona’s ELL student population” and are

not counted when it comes to the aforementioned

parental options-generating provisions of NCLB.

In California, which educates almost one-third of

all ELL students in the nation, students are tested

for NCLB purposes in grades 2-8, and then again in

grade 10.” In 2008, there were 584,977 ELL students

in grades K, 1, 9, 11, and 12 in California left entirely

'* Under 20 U.S.C. § 6311, the test scores of students at

grades 3-8 and (at least once) in grades 10-12 are counted to

determine whether schools will be identified for improvement —

the precondition for the triggering of the two parental options of

student transfer and supplemental services.

* Arizona Department of Education, Personal Communica-

tion to Roger Rice, Re: 00-ADE Data Request (Feb. 2, 2009).

” California Dep't of Educ., 2008 Adequate Yearly Progress

Report Information Guide, 7 (Nov. 2008), available at http://

www.cde.ca.gov/ta/ac/ay/documents/infoguideO8r. pdf.

outside NCLB’s accountability framework due to

grade exclusion.”

The fact that most high schools do not receive

Title I funds at all underscores NCLB’s limitations in

reaching all students for accountability purposes.

Title I funds are used predominantly at the elemen-

tary level. In 2004-05, for example, 71 percent of

elementary schools received Title I allocations, com-

pared with 40 percent of middle schools and 27 per-

cent of high schools. Students in grades 10 through

12 accounted for 21 percent of all public school stu-

dents but constitute only 9 percent of Title I partici-

pants.” As a result, NCLB’s “system” fails to address

the progress of thousands of secondary students —

including those who are in greatest danger of drop-

ping out of school.”

* Warren Institute, Analysis of 2008 NCLB Accountability

for ELL Students in California, Table 5, available at http://

www.law.berkeley.edu/3164.htm.

* U.S. Dep’t of Education, National Assessment of Title 1

Final Report, xxi, 13 (2007). The accountability provisions of

NCLB apply only to schools and districts that receive Title I

funds. See 20 U.S.C. § 6311(b)\(2)A)(ii), limiting the require-

ments of § 6316 (which sets out the parental rights to transfer

students and also to seek supplementary services) to Title I

schools.

“ According to the Arizona Department of Education,

Research and Evaluation Section (Oct. 2008), the statewide

dropout rate more than doubles between grade 8 and grade 9. A

study of national data by researchers at Boston College found

that: “the rate at which students disappear between grades 9

(Continued on following page)

2. When There are Fewer Than 40 Stu-

dents in the ELL Group, Arizona

ELL Students Are Excluded for Ac-

countability Purposes

Under NCLB, student subgroups such as

ELL students are not counted in AYP calculations

when their number is too small. 20 U.S.C.

§ 6311(b\(2C\v\{II). For instance, Arizona’s specific

minimum number, or “N” size, is 40 students” in any

one subgroup (including ELLs), which was an in-

crease from Arizona’s prior “N” of 30.”

and 10 has tripled over the last 30 years.” Walt Haney et al., The

Education Pipeline in the United States, 1970-2000, 10 (2004).

* State of Arizona Consolidated State Application Account-

ability Workbook, 45 (Revised July 3, 2008, Final Submission).

* Thirty students was conventionally considered large

enough to provide statistically meaningful results, but Arizona

received permission from the Department of Education to raise

the minimum number to 40. Arizona Department of Education,

Arizona’s School Accountobility System Technical Manual,

Vol. II, 19 (2004) available at http://azed.gov/azlearns/NCLB_

Technical_Manual 2003.pdf; Decision Letter on Request to

Amend Arizona Accountability Plan, Letter, Henry L. Johnson to

Tom Horne (Sept. 15, 2005), available at http://www.ed.gov/print/

admins/lead/account/letters/acaz3.html. The Commission of No

Child Left Behind, a bipartisan group charged with providing

recommendations to improve NCLB, suggests “N” sizes of no

larger than 20 students to ensure accountability for all students.

Commission on No Child Left Behind, Beyond NCLB: Fulfilling

the Promise to Our Nation’s Children (Washington, D.C.: The

Aspen Institute, 2007). See also Erin Dillon & Andrew J. Roth-

erham, State’s Evidence: What It Means to Make ‘Adequate

Yearly Progress’ Under NCLB, Education Sector (2007).

The test scores of students below a minimum

group size in a given LEA are not evaluated or re-

ported as a separate subgroup, but rather are

grouped with all student scores in the LEA and

therefore may be masked by the achievement of other

students. As a result, only those schools or school

districts with the largest ELL student populations

are held accountable for their academic achievement

under NCLB.”

As another example, California includes ELLs as

a subgroup in its calculations only if there are 100 or

more ELLs enrolled at the school or there are 50 or

more ELLs and they make up at least 15 percent of

the tested population.” Thus, there were nearly

95,000 ELLs in schools in California which did not

need to satisfy AYP for ELLs because the ELL popu-

lation was deemed not numerically significant.”

* For example, a school with an “N” size of 30 “where 50

percent of the students in grades K-6 are [ELL] can nonetheless

avoid having to have a [ELL] subgroup if there are only 29

[ELL] students in grades 3-6.” Wayne E. Wright, Education

Policy Study Laboratory, Language Policy Research Unit

(LPRU), Evolution of Federal Policy and Implications of No

Child Left Behind for Language Minority Students (Arizona

State University) 42-43 (January 2005), available at http://

epicpolicy.org/files/EPSL-0501-101-LPRU.pdf.

* Letter from U.S. Dep't of Educ. to California (Jan. 8,

2009), available at http://www.ed.gov/admins/lead/account/

cornerstones/ca.pdf.

” Warren Institute, Analysis of 2008 NCLB Accountability

for ELL Students in California, Table 3, available at http://

www.law.berkeley.edu/3164.htm.

When ELLs in grades not counted for accountability

are combined with those excluded due to lack of

numerical significance, these two gaps in NCLB’s

accountability system left 679,521 ELLs in California

— nearly half of all ELLs in the state, or one-sixth of

all ELLs in the nation — beyond the reach of NCLB

accountability mechanisms for ELLs. Even in the

subset of California districts meeting NCLB account-

ability requirements with ELLs, there were 125,508

ELLs not covered by any ELL accountability mecha-

nism by virtue either of grade exclusion or not meet-

ing the state’s numerical significance standard for

subgroup accountability.”

This data demonstrates there are ELL students

who attend schools or are in school districts in Cali-

fornia that may have met AYP, but who, as a sub-

group, may not be proficient under state standards

and who may not be receiving appropriate language

instruction.

In its Notice of Proposed Rulemaking issued in

April 2008, the U.S. Department of Education stated

that nearly 2 million students are not being counted

in NCLB subgroup accountability determinations at

the school level. Minority students are as much as

seven times more likely than white students to have

their scores excluded from school-level AYP subgroup

calculations. 73 Fed. Reg. 22020, 22022 (Apr. 23,

2008).

* Id., Tables 1, 3, 5.

3. Arizona’s Application of a 99% Con-

fidence Level Further Excludes

ELL Students for Accountability

Purposes

In addition to the minimum group size, states

use confidence intervals in calculating AYP. This plus

or minus zone or “window” gives schools and school

districts leeway in the number of students that need

to be proficient to meet AYP for a given year. Accord-

ing to the Congressional Research Service (“CRS”):

Use of this technique (also) tends to have the

effect, whether intentional or not, of substan-

tially reducing the number of schools or

ELLs identified as failing to meet AYP stan-

dards. Use of this statistical technique is not

explicitly authorized by the NCLB, but its

inclusion in the accountability plans of sev-

eral states has been approved by ED.”

Under this procedure, the higher the confidence

interval the larger the zone must be and the fewer

students will need to score proficient to meet the

AMAOs or AYP.” In Arizona, AYP determinations are

* Wayne C. Riddle, CRS Report for Congress, Education for

the Disadvantaged: Reauthorization Issues for ESEA Title 1-A

Under the No Child Left Behind Act, 19 (2006).

“ The Commission on No Child Left Behind recommends

limiting confidence intervals to 95%. Commission on No Child

Left Behind, Beyond NCLB: Fulfilling the Promise te Our

Nation’s Children (Washington, D.C.: The Aspen Institute,

2007). Also see, Erin Dillon and Andrew J. Rotherham, States’

(Continued on following page)

based on a 99% confidence level and the Arizona

Department of Education determines the confidence

interval for the percent proficient for each subject and

grade.”

Utah, like Arizona, uses a 99% confidence inter-

val. In Utah, the proficiency objective for Language

Arts for grades 3-8 is 65% proficient, and for mathe-

matics at least 57% proficient. For a group of 25

students, the 99% confidence level would have the

effect of reducing the required number of proficient

students under AMAO for math from 15 (57% of 25)

to 8 proficient students. The same critique applies to

Arizona and other states as well.

Evidence: What It Means to Make ‘Adequate Yearly Progress’

Under NCLB, Education Sector (July 2007).

* See Arizona Department of Education, Arizona’s School

Accountability System 2006, Technical Manual, Volume II:

Adequate Yearly Progress, DE 12 (2007).

“ David Rogosa, Statistical Misunderstandings of the

Properties of School Scores and School Accountability, in Year-

book of the National Society for the Study of Education, Vol. 104,

165-6 (2005). See also David Rogosa, The NCLB “99% confi-

dence” scam: Utah-style calculations, Stanford University

(November 2003) available at http://www-stat.stanford.cdu/~rag/

nclb/utahNCLB.pdf.

4. The Meaning of “Making Adequate

Yearly Progress” Does not Neces-

sarily Equate to Success for all ELL

Students

The number of ELL students’ scores potentially

considered for accountability purposes under 20

U.S.C. §§ 6311 and 6316 is considerably diminished

(1) after grades K-2 and 9 are excluded, (2) by not

counting the ELL subgroup members where there are

fewer than 40 in a cohort, and (3) by application of

the confidence interval procedure. The remaining pool

of ELLs for determining AYP is then measured

against the annual progress as set by the State.”

Arizona’s Annual Proficiency Goals

for School Years 2005-2007

Grade 3 4 5 6 7 8 High

School

Math /43.3%| 54% |33.3%)|43% | 48% | 22.5%| 25%

Reading} 53.3%) 45% | 43.3%| 45% | 49% | 42.5%} 35.8%

* Petitioner Horne is incorrect in stating that: “NCLB also

sets certain minimum targets so that specified percentages of

... ELL students must ... achieve success academically (AYP)

on Arizona’s AIMS tests.” (Superintendent’s Br. 18). As the

State’s witness testified at trial, it is the Arizona Department of

Education that sets improvement percentages for ELL students,

not NCLB. See Tr. Day 1, p. 160. See also, Ellen Forte Fast &

William J. Erpenback, Revisiting Statewide Educational Ac-

countability Under NCLB, Council of Chief State School Officers,

21 (2004) (“The Act leaves it to states to determine the level of

performance that reflects adequate preparation or proficiency.”).

As the table above demonstrates, schools in

Arizona meet their annual proficiency standards

under NCLB even when approximately between 50

and 75% of their students are not proficient in math

or Reading.”

The low rate of annual proficiency set forth by

Arizona for those ELL students actually subject to

NCLB’s provisions is further watered down for

accountability purposes through application of addi-

tional devices, thus further distancing NCLB from

the purposes of the EEOA. Under 20 U.S.C.

§ 6311(b)(1), if a sub-group such as ELL students does

not meet the State’s academic achievement objectives

in any year, their school will stil! be considered to

have met its annual progress standard if the percent-

age of those proficient increased by 10% from the

preceding year. So, for example, if only 20% of ELLs

meet the proficiency standards in any given year, a

school will still meet its AYP requirement if only 22%

of ELLs meet academic proficiency in the following

year, an increase of 10%.

Furthermore, school districts can only be deter-

mined to need “improvement” if they fail to make AYP

in the same subject for two consecutive years in both

elementary/middle school and high school.” If high

* State of Arizona Consolidated State Application Account-

ability Workbook, 31 (July 3, 2008).

*” See, Decision Letter on Request to Amend Arizona Ac-

countability Plan, supra at n.26. As one commentator has

described the practice: “A district could fail two-thirds of its

(Continued on following page)

school ELLs fail to master math, for example, there is

no district failure so long as elementary school stu-

dents meet the math AYP criterion. Similarly, if

elementary school ELLs fail to meet the State’s

academic objectives in Reading in year one, meet the

objective in Reading in year two, but fail to meet the

math objective, annual progress will be considered to

have been met because the failure was not in the

same subject for two consecutive years.

5. Not all School Districts with ELL

Students Participate in Title III

Funded Programs

All school districts are expected to serve their

ELL students, but not all districts are eligible for

Title III] funding. Under 20 U.S.C. § 6824(b), a State

education agency shall not award a sub-grant to a

school district in an amount less than $10,000. States

have discretion in determining how to implement this

provision. In Massachusetts, for example, Title III

funds are distributed to school districts enrolling 100

or more ELL students. In FY2007, this meant that

56 out of 251 school districts with ELL students

students every year and never be held accountable, as long as it

wasn't exactly the same two-thirds.” Kevin Carey, The Pangloss

Index: How States Game the No Child Left Behind Act, 10 (Nov.

2007), available at http://www.educationsector.org/usr_doc/

The_Pangloss_Index.pdf.

were eligible for Title III allocations.” In New York

State for the 2006-2007 school year, 271 school

districts were eligible for Title III funding for their

ELL students but 628 school districts with ELL

students were not directly eligible.”

E. Many ELLs Who are Failing to Demon-

strate Proficiency on State Assess-

ments are in Districts and Schools

Satisfying all the Accountability Re-

quirements of NCLB

There are hundreds of thousands of ELL stu-

dents failing to meet their state-mandated proficiency

rates in school districts that are meeting all of

NCLB’s ELL accountability requirements. A research

study in California found that a majority of ELL

students (140,243) who attend school in California’s

NCLB-compliant districts did not score “proficient” on

the English/Language Arts assessment.

* Mass. Dept. of Elementary and Secondary Education, No

Child Left Behind Title Ill: Language Instruction for Limited

English Proficient & Immigrant Students Program, available at

http://www.doe.mass.edw/elltitleIII. htm] (last visited Mar. 23,

2009).

® New York State Education Department, No Child Left

Behind Allocations for Title III, Part A For New York State

Public School Districts and Charter Schools 2006-2007 (Dec. 5,

2006), available at http://www.emsc.nysed gov/funding/cladcep/

0607/titlel IlallocsO0607rev8-9-06. htm.

School-level data reveals even more starkly the

differences between meeting accountability require-

ments under NCLB and learning academic English.

In California, among schools that made AYP in 2008,

there were 209,012 ELLs —- approximately 1 in 8

ELLs in the state — who were not proficient in ELA

(58%) and 164,748 (46%) not proficient in math.”

Amici do not suggest that failing to achieve profi-

ciency per se constitutes an EEOA violation when

states and districts are otherwise taking appropriate

action under the EEOA. Rather, as the data suggest,

even ELLs in districts and schools meeting NCLB

accountability properly retain the right to question

whether their educational agencies are taking appro-

priate action as to them.

III. Petitioners’ Interpretation of the EEOA

Would Embroil the Court in Oversight of

NCLB

The history of cases involving Section 1703(f) of

the EEOA show that courts have been able to balance

the requirement that states and local school districts

take “appropriate action to overcome language barriers”

with deference to the role of local government in educa-

tional policy setting. In urging that this standard now

“ Warren Institute, Analysis of 2008 NCLB Accountability

for ELL Students in California, Tables 2, 4, available at http://

www.law.berkeley.edu/3164.htm. Nearly 18% of ELLs in these

“successful” schools were not counted as part of an ELL sub-

group. Id., Table 3.

be merged with NCLB, Petitioners are inviting an

expansive new realm of judicial] involvement in public

education.

If the measure of “appropriate action” under the

EEOA is to be gauged by whether a state or school

district is “in compliance” with NCLB, inevitably the

question will turn to how “compliance” is to be deter-

mined. That, in turn, raises the question whether the

U.S. Department of Education’s multiple interpreta-

tions and exceptions in the administration of NCLB

are themselves “appropriate actions” faithful to the

EEOA statute. Academic commentators who have

carefully tracked how NCLB has been implemented

have noted that: “what once seemed a clear if highly

controversial policy has now become a set of bargains

and treaties with various states.™’ Put another way,

the facile notion of “compliance with NCLB” can

mean different things in different states.

For example, Arizona has increased its “N” size

and confidence intervals under NCLB, as well as

loosened its definition of school districts requiring

improvement, identifying only those districts when

they did not make AYP in the same subject in both

elementary/middle and high school grade spans for

two consecutive years. The implications of these

“ Gail L. Sunderman, The Unraveling of No Child Left

Behind: How Negotiated Changes Transform The Law, The Civil

Rights Project, Harvard University 6 (February 2006). As a

result “accountability no longer has a common meaning across

states or even within states.” Jd. at 10.

changes are profound and, whatever their intent,

serve to reduce the number of students counted and

schools identifiable for “accountability” purposes.”

Amici are not taking a position as to whether

these particular revisions and amendments are

appropriate or consistent with Congress’ intent or the

language of NCLB. Rather, amici point them out to

indicate that whatever surface appeal conflating the

EEOA with NCLB may have, the path implies much

more, rather than much less, judicial oversight.

“ Decision Letter on Request to Amend Arizona Accountabil-

ity Plan, supra at n.26. See other Arizona letters requesting

amendments in 2004, available at http://www.ed.gov/print/

admins/lead/account/letters/acaz2.html, and http://www.ed.gov/

print/admins/lead/account/letters/acaz4.html, (2006), http://www.

ed.gov/print/admins/lead/account/letters/acaz5.htm! (2007), and

http://www.ed.gov/print/admins/lead/account .letters/acaz6. html

(2008).

CONCLUSION

For the above reasons, amici respectfully ask

that the Court affirm the decision below.

Respectfully submitted,

NINA PERALES

Counsel of Record

DaviD G. HINOJOSA

MEXICAN AMERICAN

LEGAL DEFENSE AND

EDUCATIONAL FUND

110 Broadway St., Suite 300

San Antonio, TX 78205

(210) 224-5476

CESAR A. PERALES

JOSE PEREZ

DIANA SEN

LATINOJUSTICE PRLDEF

99 Hudson Street, 14th Floor

New York, NY 10013

(212) 219-3360

JOHN T. AFFELDT

TARA KINI

PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

San Francisco, CA 94105

(415) 431-7430

March 25, 2009

ROGER L. RICE

JANE E. LOPEZ

MULTICULTURAL EDUCATION,

TRAINING & ADVOCACY,

(META Inc.)

240A Elm St., Suite 22

Somerville, MA 02144

(617) 628-2226

DANIEL R. ALONSO

STEWART WALLACE

MICHAEL DENVIR

KAYE SCHOLER LLP

425 Park Avenue

New York, NY 10022

(212) 836-8000

Attorneys for Amici

App. 1

STATEMENT OF INTERESTS

The Earl Warren Institute on Race, Ethnicity

& Diversity

The Earl Warren Institute on Race, Ethnicity &

Diversity (Warren Institute) at the University of Cali-

fornia, Berkeley is a national, multidisciplinary re-

search, policy analysis and public education venture

that engages challenging topics in civil rights, equal

opportunity, race and ethnicity in America to provide

valuable intellectual capital to public and private

sector leaders, the media and the general public,

while advancing scholarly understanding. Central to

its methods are concerted efforts to build bridges

connecting the world of research with the world of

civic action and policy debate so that each informs the

other, while preserving the independence, quality and

credibility of the academic enterprise. The Warren

Institute devotes significant attention to education

issues, including promoting college-ready K-12 educa-

tion for all, increasing access to quality education for

immigrant children, improving system performance,

and promoting institutional accountability for stu-

dent success.

Education Law Center

Education Law Center (ELC) is a non-profit

organization in Newark, New Jersey established in

1973 to advocate on behalf of public school children

for access to an equal and quality education under

state and federal laws. ELC represents the plaintiff

school children in the Abbott v. Burke litigation and

App. 2

continues to advocate on their behalf to ensure effec-

tive and timely implementation of the educational

programs and reforms ordered by the New Jersey

Supreme Court. Because of its nationwide expertise

in school finance, preschool, facilities, and other areas

of education law and policy, ELC established Educa-

tionJustice, a national program, to advance equitable

educational opportunity and narrow achievement

gaps. EducationJustice and ELC work to improve

opportunities for low-income students, students

learning English, and students with disabilities

through policy initiatives, research, public education,

and legal action, in states across the nation. Educa-

tionJustice has participated as amicus curiae in

quality education cases in the state courts of Colo-

rado, Connecticut, Indiana, Missouri, Oregon, and

South Carolina.

LatinoJustice PRLDEF

LatinoJustice PRLDEF (formerly known as the

Puerto Rican Legal Defense and Education Fund)

was founded in New York City in 1972. Our continu-

ing mission is to protect the civil rights of all Latinos

and to promote justice for the pan-Latino community.

Since our founding 36 years ago, we have become a

major national civil rights organization litigating

impact cases, primarily across the Wastern United

States. In our first lawsuit, Aspira v. New York City

Board of Education, we helped establish bilingual

education in New York. We have combated the forced

segregation of Latino children in Delaware, Connecticut

and Massachusetts. In addition to creating pathways

App. 3

for success for Spanish-speaking children in public

schools, we have fought discriminatory hiring policies

for civil service jobs, provided equal access to public

housing for Latinos, secured the provision of public

services in Spanish, and protected the constitutional

rights of migrant workers. LatinoJustice PRLDEF

has argued landmark civil rights cases that have had

profound implications for all Latinos.

Mexican American Legal Defense and Educa-

tional Fund (MALDEF)

MALDEF is a national nonprofit organization

established in 1968 to protect the civil rights of

Latinos living in the United States. MALDEF secures

the civil rights of Latinos through litigation, advocacy

and education. MALDEF has represented Latino

interests in many important language rights and

other educational rights cases in Texas, California,

Colorado, New Mexico, Arizona and other states,

including the landmark case, Plyler v. Doe. MAL-

DEF’s mission includes a commitment to pursuing

equal educational opportunities for Latino students,

including the opportunity to become academically

proficient in English and participate in parity with

other students in educational programs, and there-

fore MALDEF has a strong interest in the outcome of

this case.

App. 4

Multicultural Education, Training & Advocacy,

(META) Inc.,

Multicultural Education, Training & Advocacy,

(META) Inc., is a national nonprofit organization

formed in 1983 for the exclusive purpose of protecting

the rights of language minority and poor children to

equal educational opportunities in schools across the

nation. META has pursued litigation, policy analysis,

and community education, on behalf of such children

in Massachusetts, New York, Florida, Texas, Colo-

rado, California, New Mexico, and elsewhere. META

knows firsthand what it means for these vulnerable

student populations to go without appropriate educa-

tion including the lack of trained teachers, curricula,

and materials that are part of appropriate or equal

education for any child. META is filing this brief

because of the dangerous arguments advanced by

Petitioners’ case that seek to undo decades of sensible

civil rights litigation in favor of reliance on an over-

stated and misunderstood federal funding statute

that in no way allows the parents of English language

learner students to protect their children’s rights or

future.

Public Advocates, Inc.

Public Advocates, Inc. is a non-profit, public

interest law firm and one of the oldest public interest

law firms in the nation. Public Advocates uses diverse

litigation and non-litigative strategies to handle

exclusively policy and impact cases that challenge the

App. 5

persistent, underlying causes and effects of poverty

and discrimination. Since its founding in 1971, a

major focus of Public Advocates’ work has been advo-

cacy to advance equal educational opportunities for

low-income students, students of color, and English

Learners. Public Advocates was one of the lead coun-

sel in Williams v. State of California, a statewide

class action lawsuit challenging the state’s failure to

provide all students with basic educational resources:

qualified teachers, textbooks, and decent school

facilities. The Williams Settlement established, inter

alia, robust systems for monitoring and enforcing EL

students’ rights to qualified teachers with specialized

training in how to teach them and adequate instruc-

tional materials.

2! ® @&

Nos. 08-589 and 08-294 (Consolifiated} 2

OFF;

IN THE

Supreme Court of the Anited States

THOMAS C. HORNE, SUPERINTENDENT OF

PUBLIC INSTRUCTION OF THE STATE OF

ARIZONA,

and

SPEAKER OF THE ARIZONA HOUSE OF

REPRESENTATIVES, ET AL.,

Petitioners,

Vv.

MIRIAM FLORES, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF EAGLE FORUM

EDUCATION & LEGAL DEFENSE FUND, INC.,

IN SUPPORT OF PETITIONERS

LAWRENCE J. JOSEPH ANDREW L. SCHLAFLY

1250 CONN. AVE, NW Counsel of Record

SUITE 200 939 OLD CHESTER ROAD

WASHINGTON, DC 20036 FAR HILLS, NJ 07931

(202) 669-5135 (908) 719-8608

Counsel for Amicus

OTH HeVTA

Wet /e

QUESTIONS PRESENTED

In 2000, a federal district court held that Arizona

violated the Equal Educational Opportunity Act

(“EEOA”) because it was not adequately funding

programs for teaching English to students. Since

then, Arizona has implemented enormous funding

increases and complied with the comprehensive

federal requirements for English-language

instruction under the No Child Left Behind Act

(“NCLB”). The district court has nonetheless refused

to modify its eight-year-old injunction, imposing

multi-million dollar penalties on the State until the

Arizona Legislature further (and _ substantially)

increases funding. Applying a standard that conflicts

with decisions of this Court and the other courts of

appeals, the Ninth Circuit affirmed, holding that

Petitioners were not entitled to relief because (1) the

named defendants support the injunction, and (ii)

the injunction’s “basic premises” have not been

“swept away.”

The questions presented by these’ two

consolidated cases are:

1. Whether a federal-court injunction seeking to

compel institutional reform should be modified in the

public interest when the original judgment could not

have been issued on the state of facts and law that

now exist, even if the named defendants support the

injunction (No. 08-294)?

2. Whether compliance with NCIB’s extensive

requirements for English language instruction is

sufficient to satisfy the EEOA’s mandate that States

take “appropriate action” to overcome language

barriers impeding students’ access to equal

educational opportunities (No. 08-294)?

3. By mandating that the State of Arizona

provide for a minimum amount of earmarked

funding specifically allocated for English Language

Learner programs statewide to comply with the

“appropriate action” requirement of EEOA §1703(f),

did the Ninth Circuit violate the doctrine prohibiting

federal courts from usurping the discretionary power

of state legislatures to determine how _ to

appropriately manage and fund their public

education systems (No. 08-289)?

4. Should the phrase “appropriate action” as

used in EEOA §1703(f) be interpreted consistently

with NCLB, where both Acts have the same purpose

with respect to English Language Learners and the

NCLB provides” specific standards for the

implementation of adequate English Language

Learner programs, but the EEOA does not (No. 08-

289)?

Questions Z and 4 cover the same interplay between

EEOA and NCLB, and Eagle Forum ELDF answers

them together in Section IV. Questions 1 and 3 cover

related issues of federalism in litigation of this type,

and Eagle Forum ELDF answers them in Sections II

and III, respectively. At the outset, Eagle Forum

ELDF addresses the damage that bilingual

education inflicts on its intended beneficiaries and

the nation as a whole.

TABLE OF CONTENTS

Pages

AOL TORII ET AD i

Catal ill

eked bucemeianonelaalins iv

re I CN sss ccntiensudasunciinnsapasonnians 1

ETE LTTE T ERM 2

NTT AAA ACRE P OCT SELE LETT EET TTC 3

Ls cesiasaes en caninepaieieiesion 5

FSA ALL ERE TED ie, Ee ee a 6

I. Bilingual Education Divides the Nation and

0 elsalitvasalanieonilaionie 6

A. Bilingual Education Balkanizes Our Nation 7

B. Bilingual Education Disenfranchises the

Students Subjected to It..................... cece 13

C. Courts Lack Authority to Require Education

in Languages Other than English .............. 18

II. Courts Must Alter Institutional-Reform

Injunctions Unsupported by Current Facts and

MITES LTE ANOS PNA Alle, AOD oP ORCL OIE De 20

Ill. The Lower Courts Usurped the State and Local

Governments’ Roles of Determining How to

Manage and Fund Public Education................. 22

IV. Courts Must Read EEOA’s “Appropriate Action”

Consistently with Other Federal Legislation... 24

A. Without Governing Principles, EEOA’s

Appropriate Action Is Non-Justiciable ....... :

B. NCLB Provides Governing Principles........:

C. Pre-NCLB Laws Provided Governing

| ._,__ RRCE Aa soe Bet eee One eer RA ia Seen 31

i ns)

Ne)

SE EE

TABLE OF AUTHORITIES

Pages

Cases

Alexander v. Sandoval, 532 U.S. 275 (2001) ............. 2

American Tobacco Co. v. Patterson, 456 U.S. 63

ESS a oe eRe ONE Pee ER ee RO ee Oar 32

Board of Educ. of Oklahoma City Public Schools

v. Dowell, 498 U.S. 237 (1991).............cccccceseeseees 21

Castaneda v. Pickard,

646 F.2a 960 (3 Cir. 1961)..............-................. 28

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ........ 24

Citizens to Preserve Overton.Park, Inc. v. Volpe,

De On I sccreareetabeieiesininiepicnionda 27

City of Canton, Ohio v. Harris, 489 U.S. 378

TET Svan a mE MEE OL RODIN Nese aE aN 27-28

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332

NR ERE OES AS ce aa gee ayn Sea cn on I RR 25

Dayton Bd. of Ed. v. Brinkman, 433 U.S. 406

SAREE TEES OSS El ENED En ae RS RST 22

Erlenbaugh v. U.S., 409 U.S. 239 (1972)......0.0..0.0... 34

FDA v. Brown & Williamson Tobacco Corp., 529

EERE IS ar a Aa nS ROO eA iG Dele 34

Frew v. Hawkins, 540 U.S. 431 (2004) ....0.0.00.0.00000.. 21

Gomez v. Illinois State Board of Education, 811

ee I CE Gee. FIED cccecececccesecersscccecesccdecseseces 28

Gray v. Powell, 314 U.S. 402 (1941) .o...cccccccccccceeeee. 27

Heckler v. Chaney, 470 U.S. 821 (1985).........00..00000 27

Jett v. Dallas Independent School Dist., 491 U.S.

BRE EE ERE NEAR ALOE TREO

Lau v. Nichols, 414 U.S. 563 (1974) ...........cccceeeeeeeeees 8

Luther v. Borden, 48 U.S. 1 (1849) ....................02eee 26

Missouri v. Jenkins, 515 U.S. 70 (1995).................- 23

Morton v. Mancari, 417 U.S. 535 (1974) ..... 30, 32, 35

Norton v. Southern Utah Wilderness Alliance, 542

es Be Ce iiciseniintinccisdccisnisinetinatenaionebiincoinias 28

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207

REIT; cciccocssercccnseivinistsncespsnuenianeiadiacaeiaimanmaniaaiaamaameaaiaaae 31-32

Panama Canal Co. v. Grace Line, Inc., 356 U.S.

BE CE vicconincsnnedtccutninunonssionnsnemeenaiuaamaaaee 27

People v. Superior Court, 92 P.R.R. 580 (1965)......... )

Red Lion Broad. Co. v. FCC, 395 U.S. 367 (1969) .. 29

Rufo v. Inmates of Suffolk County Jail, 502 U.S.

Se CEE soccecepuvcncesssesiiibesntictiesenaiaamennia 21

Steel Co. v. Citizens for a Better Environment, 523

SF es Te Ci ittiiviicsauinadaeaen 25-26

U.S. v. Estate of Romani, 523 U.S. 517 (1998)........ 34

U.S. uv. Fausto, 484 U.S. 439 (1988)..............ccccceeeees 34

U.S. v. Heirs of Boisdoré, 49 U.S. (8 How.) 113

CII vincsnveacintvacvenvensuscinnancesdadetssaaeanaanaee 31

Vieth v. Jubelirer, 541 U.S. 267 (2004)..............00... 26

Statutes

Administrative Procedure Act,

eT Ne. ro 27

DIE fe. | OUTDO rE ir EE 28

WUE Te Re aaa csiccics mncveessacctnid aceeeneee 13

Equa! Educational! Opportunities Act,

Be UA. Be FE 8 FEE civdiciiinaaeel passim

ec ccccsnuassuenvoses ii, 3, 26, 28, 31

a scusemnianoeonesecion 4

SEL a 4, 24, 28, 35

So sesslonenaesigeninsmeones 4

ESE 29

os i vsvncevocnscadaeansieseoss 5, 29, 30, 35

SE a 5, 29

ESE 7

Education Amendments of 1974 PuB. L. No. 93-

380, 88 Stat. 88 Stat. 484 (1984).........000 ce. 31

Bilingual Education Act, PUB. L. NO. 93-380,

§105(a)(1), 88 Stat. 484, 503-12 (1984) ..... 4, 31-34

Equal Educational Opportunities Act of 1974,

PUB. L. NO. 93-380, §§201-259, 88 Stat. 484,

a csulissedéverecerssacee 3

PuB. L. No. 98-511, §201, 98 Stat. 2366, 2369-87

te euuneepancucves 4

PuB. L. No. 98-511, §201(a) , 98 Stat. 2366, 2370-

Pus. L. No. 100-297, §1001, 102 Stat. 130, 274-93

a sutueeotenecaveeees 4

PuB. L. No. 100-297, §7002(a), 102 Stat. 130, 275

PuRB. L. NO. 103-382, §7112, 108 Stat 3518, 3719-

EE ~

No Child Left Behind Act of 2001, Pus. L. No.

107-110, 115 Stat. 1425 (2002)........ I-11, 3-6, 24-35

English Language Acquisition, Language

Enhancement, and Academic Achievement

Act, PuB. L. NO. 107-110, §301, 115 Stat. 1425,

EIR ee aOR MES mE Rte ee 4, 29

Legislative History

SB GI, TH. GE CIT ise ccccscvcscniccssesccsescss 2-3, 24

H.R. Rep. No. 98-748, reprinted in 1984

I alin lal 33

S. REP. No. 100-222, reprinted in 1988

RS ok dk Gy RARER PRR e ence rn aaenn emeneree Drener 33

132 CONG. REC. H1709 (daily ed. Apr. 9, 1986)

(Statement of Rep. Jeffords).....................0068. 33-34

142 CONG. REC. H9741 (daily ed. Aug. 1, 1996)

(statement by Rep. Goodlatte)...................c cece )

Rules, Regulations and Orders

Ss ESRSREERPRRPOR Tp eonceny neem OneD Manure rs: ae CFF 1

Be ie Bi, CIID co vecisnsninncsnincsecsievenssscscusens 5, 20, 21

Other Authorities

Aeronautics Committee of New York City’s Bar

Association Seeks to Raise the Bar on Safety,

12 AIR SAFETY WEEK (Aug. 17, 1998)................. 17

Roy A. BASLER, COLLECTED WorRKS OF ABRAHAM

A SD i eitsitinceieniiionsitniainssapniianliines 6, 11-12

GABOR S. BoritT, LINCOLN AND THE ECONOMICS OF

THE AMERICAN DREAM (1994)...............c:cceeeceeeeees Ll

Winston Churchill, Speech at Harvard University

IE, Gi: SI cnctnbitsnnennsssnesnisiaineanuceisuiinlismenicbinnesite 7

Court ruling dashed hopes for an impartial

recount; 1995 referendum ballots are history,

THE GAZETTE (MONTREAL) Al (Jul. 16, 2008) . 9-10

Vil

Francois Crepeau, The Law of Quebec's Secession,

27 AMERICAN REVIEW OF CANADIAN STUDIES

NEE: TIT cienceincdieeesiinssinicetGachaniegnibiaaiiassiablendsiiniamaione 10-11

Kenneth Culp Davis, “Nonreviewable Admin-

istrative Action,” 96 U. Pa. L. REv. 749 (1948)... 27

Fiona Fleck, Swiss Want English as Second

Language, LONDON TELEGRAPH (Oct. 29, 2000). 16

Toby Helm, English is Language of Today,

Germans Admit, LONDON ‘TELEGRAPH (Apr. 6,

TET Aicisinertusainindiienionndientbennantennmeeniadiaabaididinietintnees 15

William Langewiesche, The Lessons of ValuJet

592, 281 ATLANTIC MONTHLY No. 3, 81 (Mar.

DAVID G. MANDELBAUM (ed.), SELECTED WRITINGS

IN LANGUAGE, CULTURE AND PERSONALITY BY

EDWARD SAPIR (1949) ...........-cccoccccccccscccccccscees 19-20

Paul J. Mishkin, Federal Courts as State

Reformers, 35 WASH. & LEE L. REV. 949 (1978). 23

Notes from Parliament Hill, THE TORONTO STAR

I Oh ac ri 10

Andrew Osborn, As if Things Weren't Bad

Enough, Russian Professor Predicts End of

U.S., WALL STREET JOURNAL, Al (Dec. 29,

BER ERS A EE SCS ARN tars ok Aad Mee Mocs de ose CE 12

Gregory Rabassa, No Two Snowflakes are Alike:

Translation as Metaphor, reprinted in JOHN

BIGUENET AND RAINER SCHULTE, THE CRAFT OF

I i i 19

Report of the Secretary of Civil Aviation, Spain

(Oct. 1978), reprinted in AIRCRAFT ACCIDENT

DiGest GCAO Circular 153-AN/456, 22-68) ........ 18

Vill

‘THEODORE ROOSEVELT, “J'he Children of the

Crucible,” 14 ANNALS OF AMERICA 1916-1928,

CT i laediciens 6

Springs Senator Bashes Plan for Spanish Ads,

THE DENVER Post, B-02 (Jan. 27, 2009) ............ 12

GEORGE STEINER, AFTER BABEL: ASPECTS OF

LANGUAGE AND TRANSLATION (3d ed. 1998) ....... 19

MIGUEL DE UNAMUNO, THE TRAGIC SENSE OF LIFE,

AUTHOR’S PREFACE, (J.E. Crawford Flitch

i elec iaiaiiaeniniate 13-14

Barbara Wallraff, What Global Language? 286

ATLANTIC MONTHLY No. 5, 52 (Nov. 2000)......... 17

James Wilson, Summation Address to the

Pennsylvania Ratifying Convention (Dec. 11,

1787), reprinted in THE DEBATE ON THE

CONSTITUTION — FEDERALIST AND

ANTIFEDERALIST SPEECHES, ARTICLES, AND

LETTERS DURING THE STRUGGLE OVER

RATIFICATION (Gryphon Eds. 1993)............... 14-15

Nos. 08-289 and 08-294 (Consolidated)

INTHE |

Supreme Court of the Anited States

THOMAS C. HORNE, SUPERINTENDENT OF

PUBLIC INSTRUCTION OF THE STATE OF

ARIZONA,

and

SPEAKER OF THE ARIZONA HOUSE OF

REPRESENTATIVES, ET AL.,

Petitioners,

Vv.

MIRIAM FLORES, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Ninth Circuit

INTEREST OF AMICUS CURIAE

Amicus curiae Kagle Forum Education & Legal

Defense Fund, Inc. (“Eagle Forum ELDF’”)' is a

Eagle Forum ELDF files this amicus brief with the written

consent of all parties; the written letters of consent from all

petitioners and respondents have been lodged with the Clerk of

the Court. Pursuant to this Court’s Rule 37.6, counsel for

(Foutnote cont'd on next page)

nonprofit organization founded in 1981 and

headquartered in Saint Louis, Missouri. For more

than twenty-five years it has defended American

sovereignty and promoted adherence to the U.S.

Constitution. Eagle Forum ELDF has repeatedly

opposed unlawful behavior, including illegal entry

into and residence in the United States, and

encouraged State and local autonomy in the area of

education. Eagle Forum ELDF has also long

defended federalism, including the ability of state

and local governments to protect their communities

and maintain order. Eagle Forum ELDF’s frequent

participation as amicus curiae in appellate litigation

involving immigration and English language issues,

including Alexander v. Sandoval, 532 U.S. 275

(2001), in this Court, bears witness to its underlying

interest in this Nation’s immigration and education

policies. For all of the foregoing reasons, Eagle

Forum ELDF has a direct and vital interest in the

issues presented before this Court.

FACTUA GROUND

Eagle Forum ELDF adopts the facts as stated by

the petitioners. See Legislative Petitioners’ Br. at 16-

30; Superintendent’s Br. at 2-30. In summary, after

the district court found EEOA violations, the people

(Footnote cont'd from previous page.)

amicus curiae authored this brief in whole. and no counsel for a

party authored this brief in whole or in part, nor did any person

or entity, other than amucus, tts members, and its counsel make

a monetary contribution to the preparation or submission of

this brief.

of Arizona enacted Proposition 203 to require public

instruction in English, with “English Language

Learner” or “ELL” students educated in separate,

structured immersion classes until they achieve

English proficiency. In addition, Arizona and its local

schools took efforts to comply with NCLB, enacted in

2002. At the Nogales schools that provided the basis

for this litige*ion, in conjunction with adopting

English immersion for ELLs and complying with

NCLB, school officials improved the teaching staff,

replaced ineffective teacher aides with higher-quality

teachers, reduced class sizes, improved facilities,

improved textbook supplies, and ended social

promotion. In response to these efforts, the Nogales

schools’ scores improved to the point where no

ongoing EEOA violation exists.

STATUTORY BACKGROUND

Congress enacted the Equal Educational

Opportunities Act of 1974 as part of the Education

Amendments of 1974. PuB. L. NO. 93-380, §§201-259,

88 Stat. 484, 514-21 (1984). Although motivated in

large part by the Nixon Administration and

Congress’ desire to limit federal desegregation

decrees that imposed busing as a remedy, 118 CONG.

Rec. 8931 (1972) (President Nixon’s transmittal

message to Congress), EEOA also addressed the

denial of equal educational opportunity on account of

race or national origin through “the failure by an

educational agency to take appropriate action to

overcome language barriers that impede equal

participation by its students in its instructional

programs.” PuB. L. NO. 93-380, §204(f), 88 Stat. at

515 (codified at 20 U.S.C. §1703()). EEOA provides a

private right of action, 20 U.S.C. §1706, but limits

the remedies available to those “essential to correct

particular denials of equal educational opportunity.”

20 U.S.C. §1712 (emphasis added).

Enacted alongside EEOA in the Education

Amendments of 1974 was the Bilingual Education

Act, PuB. L. NO. 93-380, §105(a)(1), 88 Stat. 503-12,

which reauthorized prior | bilingual-education

legislation. As explained in Section IV.C, infra,

subsequent reauthorizations first opened the door to

English immersion in 1984 with limited funding and

then expanded that funding in 1988 in response to

demands from the Nation's schools. PUB. L. No. 98-

511, §201, 98 Stat. 2366, 2369-87 (1984); PuB. L. No.

100-297, §1001, 102 Stat. 130, 274-938 (1988).

Congress enacted NCLB in 2002, as part of an

effort to enforce performance goals on schools. PUB.

L. No. 107-110, 115 Stat. 1425 (2002). With respect

to bilingual education, NCLB’s Title II, Part A — the

English Language Acquisition, Language

Enhancement, and Academic Achievement Act

(“ELALEAAA”) — re-codified the Bilingual Education

Act, as amended and renamed. Pus. L. NO. 107-110,

$301, 115 Stat. at 1689-1744. With respect to English

education, ELALEAAA’s purposes include “to assist

all hmited English proficient children, including

immigrant children and youth, to achieve at high

levels im the core academic subjects so that those

children can meet the same challenging State

academic content and student academic achievement

standards as all children are expected to meet.” 20

U.S.C. §6812(2). Finally, BELALEAAA’s © savings

clauses provide inter alia that nothing in that

legislation either “require{[s] a State or a_ local

educational agency to establish, continue, or

eliminate any particular type of instructional

program for limited English proficient children,” or

“shall be construed in a manner inconsistent with

any Federal law guaranteeing a civil right.” 20

U.S.C. §§6845(2), 6847.

SUMMARY OF ARGUMENT

Before addressing the questions presented by

these consolidated cases, Eagle Forum ELDF

respectfully submits that the urge to bestow

bilingual services on language minorities disserves

both the Nation and the minorities themselves

(Section I). Against that background, this Court

easily should find that - having satisfied EEOA with

its English immersion program — Arizona is entitled

to relief from the district court’s injunction under

Rule 60(b)(5), notwithstanding that Arizona did not

implement the remedy that the district judge and

Ninth Circuit might prefer (Section IT). By exercising

their political preferences over the law, the lower

courts usurped State and local authority over

education, well beyond both the expertise and the

authority of the federal courts (Section ITI). Finally,

while the petitioners are correct that NCLB

compliance 1s per se EEOA compliance on English

language instruction (Section I[V.B), this Court

should also consider that — in the absence of NCLB

and other cabining tederal legislation - EEQOA’s

“appropriate action” requirement would _~ be

nonjusticiable and Arizona’s compliance plans

unreviewable (Section IV.A). Moreover, in addition to

NCLB, prior federal statutory acceptance of English

»)

immersion would support the appropriateness of

Arizona’s academic success, even if Congress had not

enacted NCLB (Section IV.C).

ARGUMENT

lL. BILINGUAL EDUCATION DIVIDES THE NATION

AND INJURES STUDENTS

As Theodore Roosevelt famously observed:

We must have but one flag. We must also

have but one language. That must be the

language of the Declaration of Independence,

of Washington’s’ Farewell address, of

Lincoln’s Gettysburg speech and_ second

inaugural. We cannot tolerate any attempt to

oppose or supplant the language and culture

that has come down to us from the builders of

this Republic.

THEODORE ROOSEVELT, “The Children of the

Crucible,” 14 ANNALS OF AMERICA 1916-1928, 129, at

130 (1968).

When language divides, culture itself divides,

and a division of political systems cannot be far

behind. In many states, a mere referendum to amend

the state constitution and split the government

would suffice, once there is a sufficient division in

language. Canada has suffered from and _ barely

survived such division. A unified Nation the size of

the United States depends on a common tongue. As

Abraham Lincoin put it in his timeless speech to the

Republican Illinvis State Convention in 1858, “fa]

house divided against itself cannot stand.” Roy A.

BASLER, 2 COLLECTED WORKS OF ABRAHAM LINCOLN

461 (1953) (quoting Matthew 12:25). Although

Lincoln was speaking about slavery, this eternal

principle holds true for language. The promotion of

language balkanization leads to political separatism.

Federal courts do not allow’ language

balkanization in their proceedings, not even in

Spanish-speaking Puerto Rico: “All pleadings and

proceedings in the United States District Court for

the District of Puerto Rico shall be conducted in the

English language.” 48-U.S.C. §864. What works for

federal court proceedings also makes the most sense

for other governmental functions, including public

schools, particularly where (as here) it enjoys local

support. It is a colossal and costly mistake for a

federal court to insist on language balkanization in

the public schools against the will of the people.

Winston Churchill observed, “This gift of a

common tonguc is a priceless inheritance.” Winston

Churchill, Speech at Harvard University (Sept. 5,

1943). It is a gift for immigrants to the United States

as much as to native-born Americans. English will

remain the common language of the United States

and American public schools are only harming

students by perpetuating any _ inabilitics’ to

understand English. Just as all federal court

proceedings in Spanish-speaking Puerto Rico are

conducted in English, Arizona public schools have

the right to take advantage of this “gift of a common

tongue” and teach in English.

A. BILINGUAL EDUCATION BALKANIZES OUR

NATION

Out of many, one: e pluribus unum. For over

two hundred years, America has been a country of

one, including one common language. Many

constitutional rights are built on the premise that

the public understands one common language. The

right to a public trial requires that the public

understand the language spoken at the trial. The

right to petition the government assumes that the

government and the public speak a common

language. The right to see a warrant prior to

allowing a search and seizure assumes that the

recipient can understand the language of the agent

presenting the warrant. The right to reasoned

judicial decisions assumes that the decision is

written in a language that the litigants understand.

The Constitution, including the Bill of Rights,

was adopted on the assumption that there would be

one language that is common to both the government

and to the people. The Constitution implicitly

disfavors language bifurcation that could frustrate

constitutional rights to a public trial, petitioning of

the government, warrants for searches and seizures,

reasoned judicial opinions, and many other rights.

While English requirements have a disparate

adverse impact on those who refuse to learn English,

they have an enormously positive impact on those

who mect the requirements and thus gain access to

mainstream of American academic and economic life.

Lau v. Nichois, 414 U.S. 563, 565 (1974) (“Teaching

English to the students of Chinese ancestry who do

not speak the language is one choice.”).

Bilingual education, which often includes

virtually no English, directly impedes the common

language on which our great Nation has been built.

Language division leads to political division and

destructive internal conflicts. It is challenging

enough to keep 300 million people “on the same

page” when they speak the same language; when

they cannot even understand each other, that task

becomes nearly impossible. The number of people

living in the United States who cannot understand

iKnglish is staggering. “Consider this: 40 million

Americans will be non-English language proficient

by the year 2000.” 142 CONG. REC. H9741 (daily ed.

Aug. 1, 1996) (statement by Rep. Goodlatte).

If 40 million non-English speakers broke off into

regions of common language, then inevitably they

would mandate use of their own language for legal

proceedings and public business. The Puerto Rico

Supreme Court, for example, denied an attempt by a

litigant to use English in a local court proceeding,

even though English was an official language along

with Spanish. People v. Superior Court, 92 P.R.R.

580, 589-90 (1965) (“the means of expression of our

people is Spanish, and that is a reality that

cannot be changed by any law’) (emphasis

added). There would be little reason for an enclave of

foreign-speaking people not to have their own schools

and governmental functions in their own language.

Were this to become widespread, the United States

would cease to be as “united” as it has been.

The cost of the disunity wrought by language

balkanization is enormous, as demonstrated by the

French-English divisions in Canada. It was only by a

razor-slim 1.2% margin in 1995 that’ French-

speaking Quebec residents failed in their referendum

to secede from Canada, by a vote of 50.6% to 49.4%,

and the outcome was contested for another decade

until the ballots were shredded without ever being

recounted. Court ruling dashed hopes for an

impartial recount; 1995 referendum ballots are

history, THE GAZETTE (MONTREAL) Al (July 16, 2008)

(“The vote came under suspicion when several

ridings in heavily federalist areas reported an

abnormal number of ballots rejected for improper

markings. Quebec Superior Court ruled in April

{2008] that the documents could be destroyed.”). A

threat of re-emergence of language-based secession

remains to this day. University of Ottawa history

professor Michael Behiels was quoted on Dec. 4,

2008, that “[t]he secessionist movement has been ...

just biding their time to watch to see if (Prime

Minister Stephen) Harper would make a mistake.

This is a very dangerous moment we're living

through here.” Notes from Parliament Hill, Tue

TORONTO STAR A238 (Dec. 4, 2008).

Portions of Quebec even voted to secede from

Quebec had it seceded from Canada. “Several

municipalities have held referendums asking their

constituents whether, in case of Quebec's secession,

they would want to stay within an independent

Quebec or would prefer to remain within Canada

through a partitionist process. ‘They have usually

obtained huge majorities in favor of the latter.”

Francois Crepeau, The Law of Quebec’s Secession, 27

AMERICAN REVIEW OF CANADIAN STUDIES 27-50 (Sept.

1997). After all, “if a part of Canada (namely Quebec)

can secede, then a part of Quebec can too.” Id. Voters

predictably want a government that speaks in their

language, and WMmlingual education encourages the

development of multiple governments:

The [prior] conception [was] Canada is one

country and only the Canadian people taken

as a whole have a right to self-determination,

to the exclusion of any of its alleged

components: au contraire, if parts of the

Canadian people may lay claim to self-

determination, then other parts can _ too,

including parts of the parts. (/d.)

Our own Nation, of course, also had a violent

experience with secession nearly 150 years ago. But

then there were powerful economic forces that bound

the nation together, forces that are not as strong in

the global economy of the 21st century. In Abraham

Lincoln’s annual address of 1862, he declared that

the United States could not be broken up because it

formed an indivisible economic unit, and that only its

economic unity provided prosperity. GABOR S.

BoriIt?T, LINCOLN AND THE ECONOMICS OF THE

AMERICAN DREAM 234 (1994). Lincoln observed that,

even if the United States did disintegrate over

slavery, economic incentives “would, ere long; force

reunion, however much of blood and treasure the

separation might have cost.” BASLER, 3 COLLECTED

WORKS OF ABRAHAM LINCOLN 17-18, 88, 120-21

(1953-55). Earlher, Lincoln had stated the economic

case against secession as follows:

On the side of the Union, it is a struggle for

maintaining in the world, that form, and

substance of government, whose leading

object is, to elevate the condition of men — to

lift artificial weights from all shoulders — to

clear the path of laudable pursuit for all — to

afford all, in unfettered start, and a fair

chance, in the race for life.

BASLER, 4 COLLECTED WORKS OF ABRAHAM LINCOLN

438 (1953-55). Those economic forces that bound the

Nation together in the 1860s, when there were

substantial tariffs and no “off-shoring,” are not as

strong today.

No one today, except perhaps a veteran of the

break-up of the Soviet Union, seriously predicts a

break-up of the United States any time soon. Andrew

Osborn, As if Things Weren’t Bad Enough, Russian

Professor Predicts End of U.S., WALL STREET

JOURNAL, Al (Dee. 29, 2008) (Prof. Igor Panarin,

dean of the Russian Foreign Ministry’s academy for

future diplomats, predicts U.S. dissolution into five

or six pieces based in part on mass immigration and

economic decline). But even those who consider U.S.

disintegration unlikely nonetheless must regret the

partial dissolution of the national fabric through

increasing balkanization in multilingual government

advertising and political campaigns. Springs Senator

Bashes Plan for Spanish Ads, THE DENVER Post, B-

02 (Jan. 27, 2009) (“All these ads are going to do is

provide one more assimilation off-ramp for new

arrivals”). Although the impulse to allow bilingual

government may flow from a sense of openness,

allowing balkanization inevitably closes communities

off from each other, denying the current immigrants

the shared experiences that past immigrants

attained.

Rather than follow the path to balkanization,

disintegration and dissolution with bilingualism,

schools would be better advised to follow the example

of the federal government itself, which conditions

naturalization on English proficiency: “No person ...

shall hereafter be naturalized as a citizen of the

United States upon his own application who cannot

demonstrate ... an understanding of the English

language, including an ability to read, write, and

speak words in ordinary usage in the English

language.” 8 U.S.C. §1423(a)(1).2 What is outrageous

about this case is that Arizona has tried to follow the

federal government’s example, and a district court

forbade it.

B. BILINGUAL EDUCATION DISENFRANCHISES

THE STUDENTS SUBJECTED TO IT

The U.S. Constitution is written” and

implemented in English, and there is no official

version in any other language. Our Rule of Law is

based on more than 200 years of development of an

enormous body of law in one language: English.

Common law in the United States is built on 500

years of jurisprudence in one language: English. The

Declaration of Independence, the Federalist Papers,

Presidential speeches and Congressional debates, the

U.S. Code, federal and Arizona judicial decisions, are

all in English. It is impossible to translate this for

bilingual education without altering its meanings. As

the Spanish philosopher put it, “An idea does not

pass from one language to another without change.”

MIGUEL DE UNAMUNO, THE TRAGIC SENSE OF LIFE,

Congress exempted certain persons over fifty

years of age and_= with’ certain — physical,

developmental, or mental disabilities from the

English-language requirement. 8 U.S.C. §1423(b).

AUTHOR’S PREFACE, xxxili (J.E. Crawford Flitch

transl. 1921).

The Constitution’s vision is inseparable from its

language. James Wilson, the only member of the

Pennsylvania Ratifying Convention who had a seat

at the Federal Convention, argued that English was

linked to America’ future greatness in his summation

to the Pennsylvania Ratifying Convention:

As we shall become a nation, I trust that we

shall also form a national character; and that

this character will be adapted to the

principles and genius of our system of

government, as yet we possess none — our

language, manners, customs, habits, and

dress, depend too much upon those of other

countries. Every nation in these respects

should possess originality, there are not on

any part of the globe finer qualities, for

forming a national character, than those

possessed by the children of America... [In

addition to a respectable national character,]

1 think there is strong reason to believe, that

America may take the lead in _ lhiterary

improvements and national importance. This

is a subject, which I confess, I have spent

much pleasing time in considering. That

language, sir, which shall become most

generally known in the civilized world,

will impart great importance over the

nation that shall use it. The language of

the United States will, in future times, be

diffused over a greater extent of country,

than any other that we now know. The

French, indeed, have made _ laudable

attempts toward establishing an_ {sic}

universal language, but, beyond the

boundaries of France, even the French

language is not spoken by one in a thousand.

Besides, the freedom of our country, the

great improvements she has made and will

make in the science of government, will

induce the patriots and literati of every

nation to read and understand our writings

on that subject, and hence it is_ not

improbable that she will take the lead in

political knowledge.

James Wilson, Summation Address to the

Pennsylvania Ratifying Convention (Dec. 11, 1787),

reprinted in THE DEBATE ON THE CONSTITUTION —

FEDERALIST AND ANTIFEDERALIST SPEECHES,

ARTICLES, AND LETTERS DURING THE STRUGGLE OVER

RATIFICATION 865-66 (Gryphon Eds. 1993) (emphasis

added). Now is not the time to reverse course.

Bilingual education of students in Arizona hurts

their education. English is becoming “the lingua

franca of the [21%‘} century” for the world, as

admitted by Germany's leading newspaper: “After

trying for decades to persuade more Britons to learn

their language, the Germans have given up the

struggle. Instead, they are promoting English as the

language of the 2lst century, with lessons for

children as young as six.” Toby Helm, English is

Language of Today, Germans Admit, LONDON

TELEGRAPH (Apr. 6, 2000) (quoting the Frankfurther

Allgemeine Zeitung, interior quotations omitted).

Switzerland has German, French, and Italian for its

official languages, but it also embraced English to be

taught as the second language of choice, rather than

its official languages. Fiona Fleck, Swiss Want

English as Second Language, LONDON ‘TELEGRAPH

(Oct. 29, 2000).

English has some inherent advantages for

technology, which ensure its future dominance as the

most popular language. English has the smallest

alphabet of major languages, including its lack of

accented, hybrid, and pictograph characters. This

facilitates efficient typing, the method for

communicating over the internet, and allows use of

the most basic character sets. English also features

easy interchangeability of nouns, verbs, and

adjectives, without much variance in form for

pronouns and verbs. That promotes’ easy

communication through brief, cryptic messages, the

style preferred by electronic media. Students are

hampered by not learning English.

English also features a_ powerful pipe-like

quality, such that one phrase can be cut and pasted

to another phrase with ease. Foreign phrases or

terms can be inserted at will into English sentences,

and the English language has grown enormously

from its flexibility in incorporating words and

phrases from other languages. Computer-based

cutting and pasting text works more efficiently in

English than in many other languages, such as those

using pictorial characters. This is _ largely

happenstance, but nevertheless gives English an

advantage in the internet medium. Accordingly,

[English has exploded in worldwide popularity since

the advent of the internet, and about 80% of the

internet uses English. English is now the second

most widely spoken language in the world, with only

Chinese dialect spoken by more people. English is

overwhelmingly the second language of choice for

non-English-speaking people. See Barbara Wallraff,

What Global Language? 286 ATLANTIC MONTHLY No.

5, at 52 (Nov. 2000) (noting, inter alia, that “English

is the working language of the Asian trade group

ASEAN” and is also “the official language of the

European Central Bank”).

The entire world has been moving towards

mandatory English. The New York City Bar

Association recommended mandatory English for air

travel, for example, citing this example:

In 1993, Chinese pilots flying a U.S.-made

MD-80 were attempting to land in northwest

China. The pilots were baffled by an audio

alarm from the plane’s greund proximity

warning system. A cockpit recorder picked up

the pilot’s last words: “What does ‘pull up’

mean?” What is needed, both in the U.S. and

worldwide, is a mandatory spoken English

test for pilots and controllers.

Aeronautics Committee of New York Citys Bar

Association Seeks to Raise the Bar on Safety, 12 AIR

SAFETY WEFK, at 33 (Aug. 17, 1998). Although the

lack of shared language has caused other airliner

crashes,' the larger point is that this balkanization

‘> The well-publicized crash of ValuJet Flight 592

in the Florida Everglades in 1996, killing all 110 on

(Footnote cont'd on next page)

inflicts similar disconnects countless times every

day, across the ;unge of human interactions, with

incalculable — but avoidable — negative impacts.

C. Courvs LACK AUTHORITY TO REQUIRE

EDUCATION _IN LANGUAGES OTHER THAN

ENGLISH

A federal court can no more require States. to

depart from English in official documents than it

could draft an official Constitution or Declaration of

(Footnote cont'd from previous page.)

board, was caused by mistakenly loading oxygen

canisters as cargo. The investigation revealed that

the canisters labeled as “repairable” had been

misunderstood as “empty.” and at one point the

National Transportation Safety Board suggested

that the use of non-English speaking mechanics may

have been a problem. William Langewiesche, The

Lessons of ValuJet 592, 281 ATLANTIC MONTHLY No.

3, 81 (Mar. 1998). With respect to the worst air

disaster of all-time — the crash of a KLM 747-200

into a Pan Am 747-100 in ‘Tenerife, Canary Islands

in 1977 — the official report found that “inadequate

language’ wasa cause. The KLM pilot used the

phrase “we are now at take-off’ when he meant to

state that he was now taking off, and thereby

proceeded to crash into another airplane on the

runway and kill 583 persons on both planes. Report

of the Secretary of Civil Aviation, Spain (Oct. 1978),

reprinted in AIRCRAFT ACCIDENT DIGEST (ICAO

Circular 153-AN/56, 22-68).

Independence translated into a different language.

Our Nation was formed based on a one-language

legal system, and States have full authority to

adhere completely to that languege in their official

documents and in their public schools.

In contrast with other countries, the United

States is governed by a written Rule of Law — defined

and applied in English. Constitutional terms such as

“due process of law,” “high crimes’ and

misdemeanors,” and “common law” lack precise

equivalents in other languages. Other constitutional

law terms such as “freedom of speech,” “cruel and

‘unusual punishment,” and “involuntary servitude”

likewise lack identical counterparts in other

languages. See Gregory Rabassa, No Two Snowflakes

are Alike: Translation as Metaphor, at 1, reprinted in

JOHN BIGUENET AND RAINER SCHULTE, THE CRAFT OF

TRANSLATION 1 (1989) (“We should certainly not

expect that a word in one language will find its equal

in another’). Translation of the Constitution, or the

enormous body of Supreme Court’ decisions

construing it, into another language would create

endiess uncertainties and opportunities for

alteration inherent in the translation process. See,

e.g., GEORGE STEINER, AFTER BABEL: ASPECTS OF

LANGUAGE AND TRANSLATION 428 (3d ed. 1998)

(noting the impossibility of perfect translation). Even

a familiar phrase like “the American dream”

encounters thorny problems of translation to other

languages used in the Americas, where “America”

does not mean the “United States.”

As observed by Professor Edward Sapir of the

University of Chicayo and later of Yale University,

“No two languages are ever sufficiently similar to be

considered as representing the same social reality.”

Id. at 91 (quoting D. MANDELBAUM (ed.), SELECTED

WRITINGS IN LANGUAGE, CULTURE AND PERSONALITY

BY EDWARD SAPIR (1949)). Nor could Courts require

States to depart from English in their laws and

regulations. Courts lack this authority to require

States to depart from English. “Government of the

people, by the people, and for the people” ensures

that the people have the power to require that public

school education be in a common language.

Translating key terms of the Constitution would

modify them without complying with the amendment

process. Moreover, translating the 200-plus years of

judicial interpretations into a different language

would change their meaning. Imagine the Supreme

Court. being required to review lower court opinions

written in aé different language. That would

introduce substantial translation complexities — and

interference with the judicial process. Courts could

not circumvent the amendment process’_ by

promulgating the Constitution in aé_e different

language.

Il. Courts Must ALTER INSTITUTIONAL-REFORM

INJUNCTIONS UNSUPPORTED BY CURRENT

FACTS AND LAW

This Court's precedents are clear’ on

institutional-reform litigation judgments and decrees

no longer supported by the current law or facts.

Principles of federalism require federal courts to

grant relief under FED. R. Civ. P. 60(b)(5) when the

facts or law have changed sufficiently from those

that purportedly justified entry of the judgment or

decree. See, e.g., Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367, 385 (1992); Frew v. Hawkins, 540

U.S. 431, 441-42 (2004). A finding that a school

violated federal law in the past cannot condemn a

school system to “judicial tutelage for the indefinite

future.” Board of Educ. of Oklahoma City Public

Schools v. Dowell, 498 U.S. 237, 249 (1991)

(emphasis added). Instead, when the school system

has complied with the relevant law under the

judgment or decree “for a reasonable period of time,”

the “necessary concern for the important values of

local control of public school systems dictates that a

federal court’s regulatory control of such systems not

extend beyond the time required to remedy the

effects of past intentional discrimination.” Dowell,

498 U.S. at 248 (interior quotations omitted). This is

basic, and the Ninth Circuit ignored it.

Indeed, Dowell involves a_ school district

previously held to have violated the Fourteenth

Amendment with intentional discrimination. As

explained in more detail in Section III, infra, this

Court’s flexible standard, sensitive to federalism

concerns 1n institutional-reform litigation, 1s even

more appropriate for violations of EEOA’s vague

“appropriate action” standard, which doves not

involve intentional discrimination under the

Fourteenth Amendment. This Court should reverse

the Ninth Circuit under the _ institutional-reform

precedents and Rule 60(b)(5).

Ill. THE LOWER COURTS USURPED THE STATE AND

LOCAL GOVERNMENTS’ ROLES OF DETERMINING

HOw TO MANAGE AND FUND PUBLIC EDUCATION

Lacking the institutional expertise to serve as

chancellors of education, the lower courts owe great

deference to State and local government on the

preeminently local preserve of education.

Notwithstanding these factors, the lower courts not

only commandeered English-language instruction in

Arizona’s schools but also — by claiming funding that

Arizona would devote to other pressing educational

needs — essentially commandeered Arizona’s public

education system.

While this is particularly egregious conduct in

the annals of federal-court supervision of State and

local schools, it becomes all the more egregious in

consideration of EEQOA’s broad discretion for State

and local governments to select an “appropriate

action.” As explained in Section IV, tnfra, a district

court’s only available remedy for a school that fails to

provide “appropriate action” under EEOA is to order

the school to take appropriate action. In other words,

inaction is actionable. The choice from among the —

range of appropriate actions, however, rests solely in

the school’s discretion, not in a court’s discretion.

Both federalism and separation of powers argues

for extricating the courts from Arizona's schools, now

that the underlying ELL deficiencies are cured.

First, “local autonomy of school districts is a vital

national tradition.” Dayton Bd. of Ed. v. Brinkman,

133 U.S. 406, 410 (1977). Second, even more than

the federal government generally, federal judges

simply lack the institutional expertise needed to run

school systems:

Federal judges cannot make the

fundamentally political decisions as to which

priorities are to receive funds and staff,

which educational goals are to be sought, and

which values are to be taught. When federal

judges undertake such local, day-to-day

tasks, they detract from the independence

and dignity of the federal courts and intrude

into areas in which they have little expertise.

Missouri v. Jenkins, 515 U.S. 70, 133 (1995)

(Thomas, J., concurring) (citing Mishkin, Federal

Courts as State Reformers, 35 WASH. & LEE L. REV.

949 (1978)). For the lower courts to have involved

themselves to this extent in Arizona’s school systems

is genuinely remarkable.

Moreover, the lower courts’ “throw money at the

problem” solution not only would waste money but

also would detract from other educational priorities.

Indeed, as the Superintendent argues, the evidence

is uncontroverted that (1) increasing funding without

structural reforms would not have led to different

outcomes; (2) Nogales’ problems did not result from a

lack of funding; and (3) the Nogales ELL program

does not need more money. Superintendents’ Br. at

23. Involving federal courts in this political process

tarnishes the federal judiciary.

As President Nixon stated to Congress in his

message forwarding the EEOA legislation, this

Nation’s history with federal decrees on school

systems finds those decrees “sometimes sound,

sometimes bizarre, but certainly uneven.” 118 CONG.

REC. 8931 (1972). His intent and that of EEOA was

that courts would get out of the business of running

school systems by imposing only the remedy

essential to correct the particular violation. /d.; 20

U.S.C. §1712. By going well beyond the remedy

“essential to correct particular denials of equal

educational opportunity,” 20 U.S.C. §1712 (emphasis

added), the lower courts exceeded their authority

under EEOA.

IV. Courts Must READ EEOA’s “APPROPRIATE

ACTION” CONSISTENTLY WITH OTHER FEDERAL

LEGISLATION

Eagle Forum ELDF agrees with the petitioners

that Arizona’s compliance with NCLB places it well

outside a court’s prerogative to find Arizona’s actions

inappropriate under EEOA. In addition to its

agreement with petitioners, however, Eagle Forum

KLDF adds two important points. First, if no federal

statute cabins the determination of what constitutes

“appropriate action,” EEOA raises a non-justiciable

political question placed entirely within the hands of

the implementing educational and __ legislative

authorities. Second, even before NCLB, federal

statutes contemporaneous with EEOA provided

governing principles that demonstrate Arizona's

compliance with EEOA.

Even if this Court did not have an obligation to

look to NCLB and other federal law to flesh out

EEOA’s appropriate action, the availability of such

standards avoids what otherwise would be

nonjusticiable for want of “any law to apply.”

Chrysler Corp. v. Brown, 441 U.S. 281, 317-18 (1979).

Thus, either because it can or because tt must, this

Court should look to NCLB and other federal law to

define and confine EEQOA’s otherwise amorphous

requirements.

A. WITHOUT GOVERNING PRINCIPLES, EEOA’S

APPROPRIATE ACTION IS NON-JUSTICIABLE

Assuming arguendo that no federal legislation

cabins the definition of “appropriate action” under

EEOA, that aspect of EEOA would not be justiciable,

either because it presents a political question or it is

an issue committed to the discretion of educational

and legislative officials. The political-question

doctrine arises out of the same Article III limitations

on federal courts’ powers as standing, mootness, and

ripeness, DaimlerChrysler Corp. v. Cuno, 547 U.S.

332, 352-53 (2006), and so would require dismissal of

this litigation:

On every writ of error or appeal, the first and

fundamental question is that of jurisdiction,

first, of this court, and then of the court

from which the record comes. This

question the court is bound to ask and

answer for itself, even when not otherwise

suggested, and without respect to the

relation of the parties to it. The requirement

that jurisdiction be established as a

threshold matter spring(s] from the nature

and limits of the judicial power of the United

States and is inflexible and without

exception.

Steel Co. v. Citizens for a Better Environment, 423

U.S. 83, 94-95 (1998) (emphasis added, citations and

interior quotations omitted). So “if the record

discloses that the lower court was” without

jurisdiction,” appellate courts such as this Court

“have jurisdiction on appeal, not of the merits but

merely for the purpose of correcting the error of the

lower court in entertaining the suit.” Steel Co., 523

U.S. at 95. As explained below, and again assuming

arguendo that no federal legislation cabins a court’s

determining what constitutes “appropriate” action,

EEOA §1703(f) is non-justiciable.

Some legal questions are “entrusted to one of the

political branches or involve no judicially enforceable

rights.” Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)

(plurality opinion of Scalia, J.). As Justice Kennedy

explained in his concurring opinion, “courts must be

cautious about adopting a standard that turns on

whether the partisan interests in the redistricting

process were excessive” because “[e]xcessiveness is

not easily determined.” Vieth, 541 U.S. at 316

(Kennedy, J., concurring). Like excessiveness,

appropriateness is not easily determined from among

the accepted means of educating students. As the

only unelected branch of government, courts are the

least fit to answer such questions. Luther v. Borden,

48 U.S. 1, 52-53 (1849) (“making judges supreme

arbiters in political controversies ... [would] dethrone

[the people] and lose one of their ... invaluable

birthrights”). In the absence of federal law to apply

to determine whether a school’s chosen action is

“appropriate action,” this Court should dismiss this

action as a non-justiciable political question.

In addition to being non-justiciable as a political

question, the selection of an “appropriate action” also

is committed to the discretion of educators and

legislators because there is no law for a reviewing

court to apply when choosing among appropriate

actions. Although this variety of nonreviewability

frequently arises under the federal Administrative

Procedure Act (“APA”), Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), EEOA

presents the same problem: “review is not to be had

if the statute is drawn so that a court would have no

meaningful standard against which to judge the

agency’s exercise of discretion.” Heckler v. Chaney,

470 U.S. 821, 830 (1985). Indeed, these cases predate

the APA, Gray v. Powell, 314 U.S. 402, 412 (1941),

and form a “common law” of “nonreviewability.”

Kenneth Culp Davis, “Nonreviewable Administrative

Action,” 96 U. PA. L. REV. 749, 750-51 (1948). Review

is particularly outside judicial expertise when, as

here, “the duty to act turns on matters of doubtful or

highly debatable inference from large or loose

statutory terms.” Panama Canal Co. v. Grace Line,

Inc., 356 U.S. 309, 318 (1958). For the foregoing

reasons, while Eagle Forum ELDF does not doubt

that a court could review a school's failure to act,

EEOA does not provide the law to apply for a court to

find whether one action is more appropriate than

another.

A rule that limits judicial review of EEOA

compliance to ensuring the selection of a

presumptively appropriate form of English language

education is consistent with the Court’s precedents

on actionable inaction. See, e.g., City of Canton, Ohio

v. Harris, 489 U.S. 378, 388 (198Y) (“inadequacy of

police training may serve as the basis for §1983

liability only where the failure to train amounts to

deliberate indifference to the rights of persons with

< -

whom the police come into contact”); Norton v.

Southern Utah Wilderness Alliance, 542 U.S. 55, 64

(2004) (inaction litigable under 5 U.S.C. §706(1)

“only where a plaintiff asserts that an agency failed

to take a discrete agency action that it is required

to take”) (emphasis in original); Gomez v. Illinois

State Board of Education, 811 F.2d 1030, 1143 (7%

Cir. 1987) (“[a]lthough the meaning of ‘appropriate

action’ may not be immediately apparent without

reference to the facts of the individual case, it must

mean something more than ‘no action”). This Court

should apply the same reasoning and limit EEOA

“appropriate action” litigation to ensuring that

schools have adopted an appropriate action, from

among the wide array of actions available to schools.

Eagle Forum’s ELDF’s proposed _ rule is

consistent with §1712’s limiting remedies to those

“essential to correct particular denials of equal

educational opportunity.” 20 U.S.C. §1712 (emphasis

added). The remedy essential to correct denial of an

“appropriate action” is to require the school to take

an appropriate action: courts do not have a say in

which appropriate action. Finally, the rule is at

least congruent with the Pickard three-part test,

Castaneda v. Pickard, 648 F.2d 989, 1009-10 (5 Cir.

1981), although Eagle Forum ELDF respectfully

submits that a court’s analysis of the second and

third tests must be extremely deferential.

As explained above — assuming arguendo that

federal legislation does not cabin courts’ discretion in

evaluating the appropriateness of State and local

action — EKOA §1703(/) would not be justiciable. As

explained in the next two sections however, both

before and after NCLB, federal law has cabined the

otherwise vague term “appropriate,” and Arizona’s

actions unquestionably fall within that term.

B. NCLB PROVIDES GOVERNING PRINCIPLES

The Speaker of the House, President of the

Senate, and Superintendent argue persuasively that,

in enacting NCLB’s Title III in 2002, Congress

necessarily made Nogales’ (and Arizona’s) NCLB-

compliant actions “appropriate” for EEOA purposes.

See Legislative Petitioners’ Br. at 51-57;

Superintendent’s Br. at 51-61; cf. Red Lion Broad.

Co. v. FCC, 395 U.S. 367, 380-81 (1969)

(“[s]ubsequent legislation declaring the intent of an

earlier statute is entitled to great weight in statutory

construction”). Kagle Forum LLDF wholeheartedly

supports their arguments amd need net repeat them.

Based on their arguments at the petition stage,

Arizona Opp’n, at 16; Flores Opp’n, at 27, the

respondents presumably will counter by citing two

NCLB savings clauses (20 U.S.C. §§6845, 6847) for

the proposition that NCILB expressly did not undo

either EEOA itself or any decrees under EEOA.

Specifically, §6845 provides that nothing in

ELALEAAA “require|s) a State or a local educational

agency to establish, continue, or eliminate any

particular type of instructional program for limited

English proficient children,” and §6847 provides that

nothing in ELALEAAA “shall be construed in a

manner inconsistent with any Federal law

guaranteeing a civil right.” 20 U.S.C. §§6845(2),

6847. ‘These savings clauses do not save the

respondents for two independent reasons.

yA)

—_.*

First, these savings clauses simply do _ not

address the thrust of the.argument that the Speaker

of the House, President of the Senate, and

Superintendent make. No-one argues that NCLB

either requires the elimination of EEOA-compliant

programs or amends EEOA by implication in a

manner inconsistent with the pre-NCLB EEOA.

Instead, the petitioners and Eagle Forum ELDF

argue that NCLB provides an authoritative — indeed,

controlling — statutory context for the scope of

EEOA’s “appropriate action” with respect to English

instruction. To hold otherwise, this Court must find

that, in NCLB, Congress enacted an inappropriate

action. Eagle Forum ELDF respectfully submits that

it falls well outside the courts’ institutional expertise

to make that finding.

Second, as explained in the next section, pre-

NCLB federal legislation already elevated Arizona's

English immersion program as “appropriate” under

EEOA. While Eagle Forum ELDF agrees with

petitioners that the NCLB savings clauses do not

negate NCLB’s_ ability to define or cabin

“appropriateness” under EEOA, the savings clauses

certainly do not render inappropriate that which

already was appropriate, prior to NCLB’s

enactment. See Morton v. Mancari, 417 U.S. 535,

549-51 (1974) (repeals by implication are disfavored);

accord 20 U.S.C. §§6845(2) (NCLB does not deprive

Nogales of right to rely on actions deemed

appropriate, prior to NCLB’s enactment). For the

reasons explained in the next section, therefore,

Arizona’s Kinglish immersion “actions” certainly are

“appropriate” under EEOA.

PRE-NCLB_ LAWS PROVIDED GOVERNING

PRINCIPLES

Federal statutory actions contemporaneous with

EEOA’s enactment and prior to NCLB’s enactment

also provide governing principles on which federal

courts must base their determination of what actions

are “appropriate actions.” As such, the question is

not whether plaintiffs lost on this issue in the 1990s,

before the consent decree, versus in the 2000s, with

NCLB’s enactmert after the consent’ decree.

Plaintiffs lost this issue in the 1980s, if not in the

1970s.

By enacting both EEOA and the Bilingual

Education Act in the Education Amendments of

1974, Congress plainly set up a situation where the

general provisions of §1703(f)’s requirement of

“appropriate action” would be cabined by what the

Bilingual Education Act required, prohibited, and

allowed. “In expounding a statute, we must not be

guided by a single sentence or member of a sentence,

but look to the provisions of the whole law, and to its

object and policy.” U.S. v. Heirs of Boisdoré, 49 U.S.

(8 How.) 113, 122 (1849); Offshore Logistics, Inc. v.

' As indicated in the prior section, because federal

law already cabined “appropriate action” to include

English immersion, this Court must __ reject

respondents’ argument that, as enacted in 2002, 20

U.S.C. §6847 somehow prevents petitioners’ relying

on NCLB’s remedial scheme to provide governing

principles on “appropriate action” under KEOA.

Tallentire, 477 U.S. 207, 220-21 (1986) (same); cf.

Morton v. Mancari, 417 U.S. 535, 550-51 (1974)

(“specific statute will not be controlled or nullified by

a general one, regardless of the priority of

enactment”). Under these precedents, common sense,

and the respect that courts owe to Congress, this

Court should read EEOA in conjunction with the

Bilingual Education Act, as amended.

Courts read statutes as a whole not only because

they owe that respect to the co-equal branch that

wrote the statute but also to avoid “untenable” or

“unreasonable” interpretations. American Tobacco

Co. v. Patterson, 456 U.S. 63, 71 (1982) (“[s]tatutes

should be interpreted to avoid untenable distinctions

and unreasonable results whenever possible”).

Indeed, American Tobacco involved this Court’s

rejection of a federal agency’s interpretation of a

statute that “would make it illegal to adopt, and in

practice to apply, seniority systems that fall within

the class of systems protected by the provision.” /d.

That is exactly the untenable situation here: a

district judge has interpreted EEOA to prohibit a

form of Enghsh instruction expressly allowed by

Congress.

Specifically, in 1984, Congress expressly

amended the Bilingual Education Act to “declare[] it

to be the policy of the United States, in order to

establish equal educational opportunity for all

children and to promote educational excellence ... to

encourage the establishment of special alternative

instructional programs for students of limited

English proficiency in school districts where the

establishment of bilingual education programs is not

“pe

pees

practicable or for other appropriate reasons.” PUB. L.

No. 98-511, §201(a) , 98 Stat. 2366, 2370-71 (1984);

accord PUB. L. NO. 100-297, §7002(a), 102 Stat. 130,

275 (1988) (same); S. REP. NO. 100-222, at 77,

reprinted in 1988 U.S.C.C.A.N. 101, 178 (1984

Bilingual Education Act amendments authorized

federal funding for “special alternative instructional

programs” such as “English as a Second Language”

and “structured immersion”); H.R. Rep. No. 98-748,

7, reprinted in 1984 U.S.C.C.A.N. 4036, 4042 (“new

category of special alternative instructional

programs for LEP children is established as an

alternative to transitional or development programs

[that] might include approaches such as English-as-

a-Second Language (ESL) or structured immersion”).

The “special alternative instructional” or “SAI”

program — including immersion — remained part of

the Bilingual Education Act from 1984 through

NCLB’s enactment. See PuB. L. No. 103-382, §7112,

108 Stat 3518, 3719-20 (1994) (1994 amendments).

As such, respondents and the lower courts cannot

evade immersion through NCLB’s savings clauses.

In introducing the Bilingual Education Act

amendments ultimately enacted in 1988,

Representative Jeffords expressed the sentiment

behind SAI programs:

It is not the role of the Federal Government

to dictate the method of instruction to be

used at the local level. but rather to establish

policy which supports the attainment = of

English language proficiency by the target

population.

132 Conc. REC. H1709 (daily ed. Apr. 9, 1986)

(Statement of Rep. Jeffords). In doing so, Congress

not only expressly amended the Bilingual Education

Act, but also impliedly amended the scope of “action”

deemed “appropriate” under EEOA. See, e.g.,

Erlenbaugh v. U.S., 409 U.S. 239, 243 (1972)

(statutes “in part materia — that is, [statutes that]

pertain to the same subject— ... under settled

principles of statutory construction, should ... be

construed as if they were one law”); FDA v. Brown &

Williamson Tobacco Corp., 529 U.S. 120, 143 (2000)

(“subsequent acts can shape or focus th[e] meanings”

of prior statutes); U.S. v. Estate of Romani, 523 U.S.

517, 530-31 (1998). The “classic judicial task of

reconciling many laws enacted over time, and getting

them to ‘make sense’ in combination, necessarily

assumes that the implications of a statute may be

altered by the implications of a later statute.” U.S. v.

Fausto, 484 U.S. 439, 453 (1988). Under that classic

judi-tal task, this Court must find that Congress has

deemed English immersion as.an “appropriate

action” per se.

English immersion is undeniably an educational

method that works, that Congress has authorized,

and that preserves our national identity. While it is

not the Congress’ role to dictate State methods of

instruction, it even more strongly is not the role of a

federal judge to do so. Because the Bilingual

Education Act’ consistently allowed English

immersion as a means of instruction from 1984

through the enactment of NCLB in 2002 (and since),

Kagle Forum ELDF respectfully submits that the

plaintiffs and the district court have it precisely

backwards. The question is not whether NCLB’s

savings clause in §6845(2) protects their injunction

under EEOA. See 20 U.S.C. §6845(2) (“[nJothing in

this part shall be construed ... to require a State or a

local educational agency to ... eliminate any

particular type of instructional program for limited

English proficient children”). The question is

whether §6845(2) prohibits anyone’s denying that

English immersion is an “appropriate action” under

federal law.

The answer is that §6845(2) plainly prohibits

courts from denying schools the right to use English

immersion. Id.; see also 20 U.S.C. §1712 (“court ...

shall seek or impose only such remedies as are

essential to correct particular denials of equal

educational opportunity” under EEOA) (emphasis

added). Because English immersion is per se an

appropriate action, a court simply lacks discretion

under EEQA to require anything else from a school

that provides English immersion. Under the

circumstances, this case is not an instance of merely

disfavoring repeals by implication, Morton, 417

U.S. at 549-50, but one where the Court “should be

particularly hostile to [repeals by implication

because] the allegedly repealing statute specifically

rules them out.” Jett v. Dallas Independent School

Dist., 491 U.S. 701, 746 (1989) (emphasis added).

Following 25 years of congressional policy, this Court

must accept immersion as an “appropriate action.”

CONCLUSION

For the foregoing reasons and those argued by

the petitioners, this Court should reverse the Ninth

Circuit’s decision and remand with instructions to

vacate the district court’s injunction.

Respectfully submitted,

LAWRENCE J. JOSEPH ANDREW L. SCHLAFLY

1250 CONN. AVE, NW Counsel of Record

SUITE 200 939 OLD CHESTER ROAD

WASHINGTON, DC 20036 FAR HILLS, NJ 07931

(202) 669-5135 (908) 719-8608

Counsel for Amicus

Dated: February 25, 2009

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.