Justices to hear Ariz. case
April 20, 2009
U.S. high court may settle
Pat Kossan - Apr.
20, 2009 12:00 AM
The Arizona Republic
legal battle over how Arizona treats students who are still learning English
will be argued today before the U.S. Supreme Court in a case the justices could
use to set sweeping new limits on the power of the federal courts over states.
The hearing is the latest, and perhaps final, stop in the divisive case known as
Flores vs. Arizona. The case has pitted state lawmakers against federal
judges since 2000.
That's when a federal district court decided the state was not living up to the
federal Equal Education Opportunity Act of 1974. Among other things, the law
requires schools to take action to help students overcome language barriers that
prevent them from fully participating in education programs.
The Supreme Court could decide that Arizona must spend more than its current
$360 to $400 per English learner or decide the state is making progress and send
the case back for a lower court to reconsider. The court also could dismiss the
case and use the opportunity to rein in the power of federal court judges to
tell states how to use their money.
Cases that pit the federal courts against a state's right to govern its own
affairs are likely to make their way to the high court often in the coming
years, said attorney Clint Bolick, an author and constitutional attorney with
the Goldwater Institute who has argued cases before the Supreme Court. Bolick
expects the number of such cases to increase because the federal government is
sending the states more money to aid education, health care and prisons; with
that money come more federal oversight and regulation.
"This could be Round 1 of a very pronounced battle," Bolick said. "I think
you'll probably see a growing clash between states and the federal government -
in Arizona, in particular, given our ornery nature."
Case moves through appeals
Flores vs. Arizona was filed in 1992, and in 2000 the federal court
ordered Arizona to establish a program to teach English to about 140,000
students, determine the cost and fund the program. In 2005, the court threatened
to impose fines of up to $2 million a day when it decided the Legislature was
not quickly and completely complying with its order.
By February 2008, attorney Tim Hogan of the Arizona Center for Law in the Public
Interest had persuaded the 9th U.S. Circuit Court of Appeals that the state
still had not adequately funded an English-language-learner program and kept
alive the threat of fines.
To ward off those fines, the state created a new English-immersion program and
funded it with an additional $40 million.
Hogan and the schools he represents called the effort inadequate and continued
to pursue the case.
Tom Horne, Arizona's superintendent of public instruction, and legislative
leaders hired attorneys and asked the U.S. Supreme Court to dismiss the case and
protect the right of Arizona to run its own schools. In January, four of the
nine justices agreed to consider the question, enough to get it on the court's
Factors for the state
Horne and legislative leaders can point to several factors working in their
favor in the case:
• The court's history. The Supreme Court rarely takes the time to wade
into a case unless it expects to change a standing court order, so Hogan is
fighting "an uphill battle" to keep the case alive, said Paul Bender, a
constitutional-law expert and former dean of the Arizona State University's
Sandra Day O'Connor College of Law.
Also, "the tendency of this court is against federal intrusion in the way states
run schools, prison and other institutions," Bender said.
The Court has heard, and overturned, more decisions by the notably liberal 9th
U.S. Circuit Court of Appeals than other federal appeals courts.
• New learning programs. Horne and the legislative leaders want the
justices to consider the state's new language-learning programs and the new
money it added to fund the program.
Bolick said that in recent decades, more federal judges have viewed civil-rights
laws as providing equal opportunity but have not expected them to guarantee
• No Child Left Behind. The state has complied with the federal No Child
Left Behind Act, which attorneys can cite as evidence that Arizona is helping
However, both liberal and conservative constitutional-law experts view this
argument a stretch.
Factors against the state
Factors weighing in favor of Hogan's side of the case:
• Lack of student progress. Despite the state's increased programs and
money, Arizona's English learners are not improving on their state and national
"If the court understands it still really is not a good situation, that there
still really is not enough funding for the state to comply with what the state
ought to be doing, then I think he (Hogan) has a chance," Bender said.
On top of this, state lawmakers never complied with the court's direct order to
research the amount of money needed to improve language-learning programs and
fund the programs.
"That may rub some of the justices the wrong way," Bender said.
• A divided state. Arizona Attorney General Terry Goddard and the Arizona
State Board of Education are not siding with Horne or the legislative leaders.
Experts in both liberal and conservative camps say the failure of Arizona to
present a united front will not decide the case but could sway members to narrow
the sweep of any decision. The court could send it back to the lower court with
new instructions, keeping the case alive and a local issue.
• A divided court. Horne and the legislators' arguments could sway the four
conservative justices on the nine-person court. But Justice Anthony Kennedy,
often a swing vote, is less predictable and less conservative than he was a
decade ago, particularly in minority-rights issues, Bender said. Kennedy could
be the swing vote.
The least expected outcome in Flores vs. Arizona would be for the high
court to simply reaffirm the lower court order and instruct Arizona to step up
Attorneys who know the case and have experience with Supreme Court cases expect
a complicated decision, which will be released in June.
Reach the reporter at