Pat Kossan, “Court rules in favor of state in 17-year English-learner battle Justices: Court didn't weigh recent educational efforts,” The Arizona Republic- Jun. 26, 2009 http://www.azcentral.com/arizonarepublic/news/articles/2009/06/26/20090626flores0626main.html
The U.S. Supreme Court took a major step toward ending a 17-year legal battle Thursday, saying lower courts erred by focusing too much on forcing Arizona to spend more money to help students who haven't yet learned to speak, read or write English.
The court voted 5-4 to send the Flores vs. Arizona case back to the 9th U.S. Circuit Court of Appeals with instructions to consider whether Arizona has complied with civil-rights law by improving both English-learner programs and K-12 education overall.
The decision stopped short of dismissing the case but could hand back to Arizona lawmakers the power to determine how much is spent on English instruction and how such students are taught.
The ruling also removes the threat of $2 million-a-day fines that a U.S. District Court judge threatened to impose if Arizona did not fully implement and fund a language-learners program.
The majority opinion, written by Justice Samuel Alito and joined by conservative colleagues, sent a strong message to lower courts by questioning why schools and states should remain under the direction of federal courts for so many years.
The Court of Appeals "improperly substituted its own policy judgments for those of the state and local officials entrusted with the decision," Alito wrote.
His opinion raised doubts about whether the Flores case, originally filed in 1992 against the Nogales Unified School District, should still apply to the entire state.
Still, the high court's decision leaves room for future arguments over how much progress the state has really made with English learners. For years, such learners have lagged behind their academic peers beginning in middle school.
Attorney Tim Hogan, who represents the plaintiffs in the lawsuit, the Flores family of Nogales, said that although he is disappointed in the Supreme Court's reversal of the Appeals Court, which found that Arizona's funding was inadequate, its remanding of the case to lower courts keeps the legal battle alive.
"This will give us an opportunity now to fully test the existing program that's in place for English-language learners in Arizona and whether or not that program is working," said Hogan, of the Arizona Center for Law in the Public Interest.
The majority opinion was issued by Alito, Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas. Justice Stephen Breyer wrote a dissent and was joined by Justices Ruth BaIn weighing the case, the Supreme Court considered the fact that Flores was originally based on the Equal Education Opportunities Act of 1974. That law requires states to take "appropriate action" to help kids still learning English keep up with their academic peers. But the Supreme Court emphasized that the federal civil-rights law also entrusts states to choose how to meet the obligation.
The decision stated that the lower courts concentrated too narrowly on how much the state spent to help language learners, adding that increases in overall school funding also should be considered in determining whether the state complied with federal law.
The justices stopped short of weakening the Equal Education Opportunities Act, as some civil-rights attorneys feared. But the court said that complying with the No Child Left Behind Act of 2002 did help to satisfy the requirements in the 1974 law to take "appropriate action" to help students overcome language barriers.
The court reversed the decision of the federal Appeals Court that Arizona needs to improve the way it funds language instruction and sent the case back with strong directions to reconsider how much has changed in Arizona since an earlier decision in 2000. The state's changes include an increase in funding for English-language instruction and improvements in the methods used to instruct the students, including reforms made through Arizona's compliance with No Child Left Behind.
Now, attorneys will move from arguments over how much money Arizona spends on language instruction to the quality and outcomes of that instruction. The decision does not lead to a rehash of old arguments but a hashing out of new arguments, said Clint Bolick, a constitutional expert and litigation director for the Phoenix-based Goldwater Institute.
"The gist of the decision is that the world in Arizona has changed," Bolick said. "What the court is telling the (lower) court to do is determine if there is a violation of federal law based on the reality in Arizona in 2009."
In his dissent, Justice Breyer concluded that the evidence showed the Appeals and District courts did consider all the changed circumstances in Arizona and ruled correctly.

"The lower courts did 'fairly consider' every change in circumstances that the parties called to their attention," Breyer wrote. "The record more than adequately supports this conclusion."
He said the majority was wrong to separate the issue of how Arizona funds its language programs and the content and success of those language programs.
"The court cannot sensibly drive a wedge (as it wishes to) between what it calls the 'incremental funding' issue and the uncured failure to comply with the requirements of federal law," Breyer stated.
The majority's decision "risks denying schoolchildren the English-learning instruction necessary 'to overcome language barriers that impede' their 'equal participation,' " Breyer added.
Thursday's ruling was also a legal victory for Arizona Superintendent of Public Instruction Tom Horne, who, along with Republican lawmakers, petitioned the Supreme Court to weigh in on the case.
"This is a major step to stop federal trial judges from micromanaging state education systems," Horne said. "This affirms that important value that we the people control our government and our elected representatives and are not ruled over by an aristocracy of lifetime federal judges."