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In a 5-4 decision, the United States Supreme Court last week sent back for further hearings an Arizona English language learner funding case that has been pending in the federal courts for the past nine years. In Horne v. Flores, the high court majority reversed a decision of U.S. Court of Appeals for the Ninth Circuit that had upheld a district court order finding the state in contempt for failing to follow the court’s previous orders to “establish a funding system that rationally related funding available to the actual costs of all elements of ELL instruction.” The dissenters would have upheld the lower court orders without any further hearings.

The further hearings ordered by the majority are to determine whether “changed circumstances,” have rendered the district court’s nine-year-old order “no longer equitable.” The specific matters that require further consideration are the state’s policy shift from bilingual education to structured English immersion, passage of the No Child Left Behind Act, structural and managerial reforms in the plaintiff school district, and increases in state and federal funding since 2000.

The main issue in this case was whether the petitioners, the state superintendent of public instruction and Arizona’s legislative leaders, were entitled to an order under federal rule 60(b)(5), which permits a party to obtain relief from a judgment or order if its continued application “is no longer equitable.” The majority’s lengthy examination of the “changed circumstances” that justify modifying an outstanding order undoubtedly will be to make it somewhat easier for defendants in this and other federal institutional reform litigations to terminate or modify consent decrees or remedial orders of courts that monitor compliance in such cases for extended periods of time. The ruling has no binding authority or direct precedential impact, however, in state education finance or other state court litigations.

The Arizona state superintendent of public instruction, as the main petitioner in this case, had also asked the Supreme Court to rule that federal courts should be prohibited “from usurping the discretionary power of state legislatures to determine how to appropriately manage and fund their public education systems.” The Court did not respond to this radical request that would have severely constrained the ability of the federal courts to implement remedies in ELL, special education, and other education-related litigations. Under the Court’s remand order, the federal district court in Arizona can still order the state legislature to increase funding for ELL programs if the evidence gathered in the additional hearings now required by the Supreme Court still justifies such increases.

Justice Samuel Alito’s decision for the majority mentioned in passing that there is “a growing consensus in education research that increased funding alone does not improve student achievement.” He cited for this proposition a number of works by Eric Hanushek and other conservative economists and policy analysts. Hanushek and a group of self-described “education policy scholars” had submitted a brief to the Supreme Court in this case which argued that “Studies have overwhelmingly shown that court ordered funding remedies….are consistently ineffective” and “Instead of ordering more funding, courts should allow States the flexibility to find solutions to their educational problems by focusing on outcomes and accountability.” The Court did not discuss whether court decrees in either federal or state institutional reform litigations have, in fact, been “ineffective,” and, as indicated above, it did not accept the state superintendent’s position that federal courts should be precluded from issuing orders that require state legislatures to increase funding in order to vindicate children’s educational rights.

Alluding to Justice Alito’s references to the arguments of the “education policy scholars,” Justice Stephen Breyer, in his decision for the 4-person minority, stated that he didn’t “know what this has to do with the matter [being litigated],” and he chastised the majority for including “footnote references to the writings of one side of a complex expert debate.” He then added “But if it is relevant to today’s decision, the Court should also refer to the many studies that cast doubt on the results of the studies it cites.” Breyer then cited a number of studies and articles that criticized that arguments of Hanushek and others who have supported his views.

In sum, although the Flores decision has brought before the U.S. Supreme Court the “battle of the experts” on the extent to which “money matters” in promoting education reform, in the end, the Court as a whole issued no specific holding on this issue. Michael Rebell, in his article entitled “Meaningful Educational Opportunity and the Necessary Role of the Courts,” 85 N.C.L. Rev. 1467,1487 (2007), one of the works cited in the dissent, summarized the literature and the findings of the state courts on this issue, and concluded that in the end all sides to this debate really agreed that “money matters---if it is spent well.” Although like the economists and social science experts, the Justices may disagree on how to ensure that educational funds are “well spent,” they all did seem to agree that some combination of increased funding and proper programming and accountability are required, since both the majority and the dissent found unobjectionable the proposition that “increased funding alone does not improve student achievement.” (emphasis added by Justice Breyer.)