Tuesday, June 30, 2009

MALDEF Fact Sheet on Supreme Court's Dec. in Horne V. Flores

This, together with the previously posted Lyons piece provides convincing arguments that Horne was indeed a victory.
Great job, David and others at MALDEF!


Contact: David Hinojosa
Staff Attorney- MALDEF Southwest Regional Office
dhinojosa@maldef.org/ 210-224-5476


On June 25, 2009, the Supreme Court decided Horne v. Flores, a case involving education of English
Language Learner (ELL) students in Arizona public schools. The Supreme Court reversed and
remanded the case back to the district court to determine a number of factual and legal issues in light of
its opinion.

Positive Points of the Decision

1. The significance of providing equal educational opportunities to ELL children cannot be
understated. The Court said: “There is no question that the goal of the EEOA [Equal
Educational Opportunities Act]- overcoming language barriers- is a vitally important one, and
our decision will not in any way undermine efforts to achieve that goal.”

2. States have continuing obligations under the EEOA to develop effective programs that will
allow ELL children to become proficient in English.

3. The Court rejected Arizona school officials’ claim that the State’s mere compliance with the
No Child Left Behind Act (NCLB) constitutes compliance with the EEOA. Courts may now
consider whether substantial state educational changes made pursuant to NCLB—including
funding increases as well as programmatic and monitoring improvements to language
programs for ELL students—amount to “appropriate action” under the EEOA and help ELL
students become proficient in English.

4. Focusing solely on funding of ELL programs is insufficient to prove a violation of the EEOA,
but funding remains relevant because courts must still determine whether available funding for
general education and from local revenues supports “EEOA-compliant ELL programming.”

5. Returning control to the State by possibly dissolving the lower court injunction is important
but can only occur if the public’s interest is served and the State can prove that it has satisfied
its obligation of providing “appropriate action” under the EEOA.

6. No ultimate determination has been made on any of the claims by the plaintiffs in the case.
The lower court must still determine whether the following changes were significant enough to
satisfy the State’s obligation under the EEOA and, therefore, dissolve the injunction: a change
from Bilingual Education programs to Structured English Immersion programs; a change in
ELL programs and funding resulting from NCLB; and a change in Nogales’s local structural
and management reforms.

Negative Points of the Decision

1. The Court further relaxed the standard to dissolve injunctions under Fed. R. Civ. P. 60(b)(5),
thus providing an avenue for defendants to circumvent compliance with an existing injunction
and to argue other changed circumstances.

2. The Court held that although the district court must resolve whether the State has provided
sufficient funding for ELL programs, the court must take into account funding for general
programs and other local sources rather than looking at targeted ELL funding alone. Thus
districts may be forced to “rob Peter to pay Paul.”

3. The Court stated that compliance with NCLB is not per se compliance under the EEOA, but the
Court also discussed in detail how the language program changes made by the State pursuant to
NCLB may, along with other changes, provide the basis for significant changes and
“appropriate action.”

4. The Court ignored, in essence, some of the data reflecting the overall lack of success of ELL
students, especially at the secondary level. The Court held, however, that the record at this time
is insufficient to make a final determination.

5. The Court’s majority opinion seemingly endorsed Structured English Immersion programs over
Bilingual Education programs and indicated that putting more money into education does not
matter, but those rhetorical comments carry no legal weight. As the dissenting opinion notes,
there is substantial research proving that bilingual education is far more successful than
Structured Immersion programs in helping students learn English and that providing sufficient
funding for quality educational programs will make a difference. Clearly, the debate is not over.


The original action was filed in 1992 by a class of ELL students in Nogales, Arizona, claiming that the
State had failed to assist ELL students in overcoming their language barriers under the EEOA by
under-funding language programs. Plaintiffs prevailed at the trial level in 2000, proving that the State
had violated the rights of ELL students under the EEOA by failing to take “appropriate action.” The
district court ordered the State to provide adequate funding of programs for ELL students, an order
with which the State never complied. Following a series of court orders attempting to enforce the 2000
funding order, the State filed a motion seeking dismissal of the case arguing that a series of significant
programmatic improvements and funding for ELL programs made state compliance with the funding
order insignificant. The motion was denied by the lower courts. Arizona then sought review with the
Supreme Court.

In support of the plaintiffs in this case, MALDEF and other national civil rights groups submitted an
amicus brief arguing that Congress never intended for a State to be absolved of its responsibilities
under the EEOA by meeting its duties under the EEOA.

Founded in 1968, MALDEF, the nation’s leading Latino legal civil rights organization, promotes and
protects the rights of Latinos through litigation, advocacy, community education and outreach,
leadership development, and higher education scholarships. For more information on MALDEF,
please visit: www.maldef.org.


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