F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

M I R I A M F L O R

E S , individually

and as a parent of Miriam F lores, minor child; R O S A R Z E S L

AW S K I , individually and as parent of Mario Rz e slawski, minor child,

Plaintiffs-Appellants
,

v

.

J O H N H UP P E

N T H A L , Superintendent of Public I nstruction of the State of Ariz ona; S T A T E O F A R I Z ON A , Defendants-Appellees
,

S P E A K E R O F T H E A R

I Z ON A H O U S E O F R E P R E S E N T A T I VE S A

N D P R E S I D E N T
O F T H E A R

I Z ON A S E N A T E , Intervenors-Appellees

. N o. 13-15805

D.C. No. 4:92-cv-00596- RCC

OPI NI ON

Appeal from the United States District Court for the District of Ariz o na Raner C. Collins, Chief District J udg e, Presiding

Argued and Submitted J anuary 12, 2015—San F rancisco, California

F iled J une 15, 2015F L O R E S V

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B e fore: J . Clifford W allace, Milan D. Smith, J r., and Michelle T. F riedland, Circuit J udg es.

Opinion by

J udg e Milan D. Smith, J r.; Concurrence by

J udg e F riedland

SUMMARY *

Equal Educational Opportunities Act

The panel affirmed the district cour t’s order, on remand from the United States Supreme Court, g ranting a motion for relief under F ed. R. Civ. P. 6 0(b)(5) f rom a judgm e nt for alleg ed violations of the Equal Educational Opport unities Act, and vacating a

n injunction g ranting statewide relief to a

c l a ss o f Eng lish L ang uag e L earners and their parents i n Ariz ona’s Nog ales Unified School District.

The panel held that the d istrict court complied with the S up r e m e Court’s order a n d did not a

buse its discretion i n granting defendants’ Rule 60(b)(5) motion because th e circumstances s u rrounding the implementation and funding of Eng lish L a

ng ua ge L earner prog r ams at the state a nd national levels had chang ed substantially since 2 0 00, when the judg ment was entered, and the current prog rams constituted “appropriate action” under the EEOA.

The pan el f

u r t her held that p laintiffs had not shown that Ariz ona w as violating the EEOA on a statewide basis, and the

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.F L O R E S V

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facts alleg ed by them w ere in s u f fi cient to justify the maintenance of a statewide injunction. The panel concluded the plaintiffs were not attacking the v alidi t y o f a statewide policy ; rather, they w ere challeng ing local implementa t i o n after the fir s t y ear of a f our-hour Eng lish L ang uag e Development requirement, and its alleg ed neg ative e ffects on E n g lish L ang uag e L earner students, some of whom mig h t receive less academic content than their Eng lish-speaking
peers. The panel held that plaintiffs d id not de m o n s t r ate standing to raise statewide claims.

J udg e F riedland concurred in Parts I .1-I

. 4 of the majority opinion, which addressed the motion for relief from judg ment, and she concurred in the judg ment. J udg e F riedland ag reed with the majority that the d istrict court obey ed the Supreme Court’s d i rectives reg arding how the remand in this case should proceed, a n d that the district court did not abuse its d iscretion in, according ly
, g ranting Rule 6 0 ( b ) (5) relief to defendants. J udg e F riedland wrote separately to address additional argume n ts she understood plaintiffs to be making

. J udg e F riedlan d w o u l d hold that althoug h plaintiffs had standing to bring a facial challeng e to the f our-hour Eng lish L ang uag e D evelopment model adopted for use statewide, thi s c h a l l e ng e failed on the merits. She also would hold that pla i n t iffs d id not show that their new objections to the f

our-four model’s implementation in Nog ales constituted EEOA violations that r e quired maintaining an injunction in Nog ales.F L O R E S V

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COUNSEL

Timothy M. H og an (arg ued), and J oy E. Herr- C a r d illo, Ariz ona Center for L aw i n the Public I nterest, Phoenix
, Ariz ona, for Plaintiffs-Appellants.

Melissa Iy er (arg

ued )
, and Michael Dulberg
, B urch & Cracchiolo, P.A., Phoenix
, A riz ona, for DefendantsAppellees.

Thomas C. Horne, Attorney General, L eslie Ky m a n Cooper and J inju Park, Assistant Attorney s General, P h oenix
, Ariz o n a, for Defendants-Appellees State of Ariz ona a nd members o f the Ariz ona State B o ard of Education in their official capacity

.

David J

. Cantelme (arg

ued), D. Aa r o n B rown, and Samuel Saks, Cantelme & B rown, P.L .C., Phoenix
, Ariz o na, for I ntervenors-Appellees.

J ocely n Samuels, Acting Assistant Attorney General, Dennis J

. Dimsey and Erin H. F ly nn, A ttorney s, United States Departm e n t o f J ustice, Civil Rig hts Division, Appellate Section, W ashing ton, D.C., for Amicus Curiae United States.F L O R E S V

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OP INION

M. SMI TH, Circuit J udg e :

Plaintiffs-Appellants are a class o f E ng lish L ang uag e L earners (EL L s) and their parents (the F lores Plaint iffs) in Nog ales Unified School D istrict (Nog ales). They appeal from the district court’s order g ranting the Superintendent o f Public Instruction for the S t at e o f Ariz ona, the State o f Ariz ona, the Ariz ona State B oard of Education, t h e Speaker of the Ariz ona House of Representatives, and the President o f the Ariz ona Senate (collectively
, the State Defendants) Rule 60(b)(5) relief from a judg ment for a l l e g ed violations of the Equal Edu c a t i onal Opportunities Act (EEOA), 20 U .S.C. §§ 1701–21. The d istri ct court a lso vacated its earlier injunction g ranting the F lores Plaintiffs s tatewide relief because it determined that the F l o r e s Plaintiffs had not established a “statewide” violation of the EEOA. I n arriving
at its decisions, the district court followed the instructions o f the Supreme Court in H

orne v. Flores
, 5 57 U.S. 433 (2009).

On appeal, the F lores Plaintiffs argue that the d i s t r i ct court erred b ecause, 1 ) the four-hour Eng lish lang uag e requirement imposed on E L L s violates the EEOA because “it results in EL L students receiving less academic content than their Eng lish-speaking peers and the State neither p rovides,

nor requires school districts to provide, EL L students with an opportunity to recover that missed content,” and it seg reg ates EL L students f

rom their Eng lish-speaking peers “[ if] the g oal of proficiency within one y ear h as n ot been achieved”; a nd 2) the F lores Plaintiffs “have s t anding to challeng e a Statemandated policy intended to bring about a uniform method o f En gl i s h languag e instruction to all EL L students in all districts in Ariz ona.”F L O R E S V

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W e hold that the district court did n ot abuse its discretion i n g ranting the State Defendants’ Rule 60(b)(5) motion f o r relief from judg ment because the circumstances surrounding the implementation a

nd funding of EL L prog rams at the state and national levels have c hang e d substantially since 2 0 0 0, and the c urrent prog rams constitute “appropriate action” under the EEOA. W e f

urther hold that the F lores Pla i n t i ffs have not shown that Ariz o n a i s violating the EEOA on a statewide basis, and that the facts alleg ed by t h em a re insufficient to justify the maintenanc e of a statewide injunction.

F ACTUAL AND P ROCEDURAL BACK G ROUND

I n 1992, the F lores Plaintiffs filed a class action su i t o n behalf of “all minority ‘ at risk’ and limited Eng lish proficient children

. . . now or hereafter, enrolled in the Nog ales Unified School Dis t r i c t

. . . as well a s their parents and g u ardians.” Horne v. Flores
, 557 U.S. 433, 439–40 ( 2 0 0 9). The F lores Plaintiffs requested a declaratory judg ment holding the State of Ariz ona, the Ariz ona State B oard o f E du c a t i o n , and the Superintendent of Public I nstruction r esponsible for violating the EEOA, which provides in relevant part:

No state shall den y e qual educational opportunity to an individual on account of his or her race, color, sex , or national orig in, by

–

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(f) the f ailure by an educational a g ency to take appropriate action to overcome la n guag e barriers that impede equal participation by its students in its instructional prog r ams.

20 U.S.C. § 1703 (emphasis added).

I n 2000, after a bench trial, the district c ourt concluded that the State Defendants 1 were violating the E EOA b y providing insufficient funding to EL L students i n Nog ales. Flores v. State of Arizona
, 172 F

. Supp. 2d 122 5 ( D

. Ariz

. 2000). L ater that y e a

r, Ariz ona voters passed Proposition 203, which implemented the “sheltered Eng lish immersion” (SEI ) approach sta t ewide, a

nd required “nearly all classroom instruction” to be “in Eng lish but w ith the c u rriculum a nd presentation desig n ed for c h i ldren who are learning the lang uag e.” Ariz . Rev. Stat. § 15-751(5).

I n 2001, just day s after Cong ress passed the No Child L eft B ehind Act (NCL B ), 115 Stat. 1702, as added, 20 U .S.C. § 6842 e t seq ., the district court ex tended i t s orig inal declaratory judg ment statewide, “eve n thoug h the c ertified class included only Nog a les students and p a re n ts and even thoug h the court d id not fi n d that any districts other than Nog ales were in violation of the EEOA.” Horne
, 5 57 U.S. at 441; No. CI V 92-596TUCACM, 2001 W L 1028369, at *2 (D. Ariz

. J une 25, 2001). The state attorney g eneral acquiesced in th i s s t a t ewide ex tension because of “the A riz o na

1 W e n o te th at p lain t if

f s o rig in ally

so u g h t relief ag ain st o n ly “ th e State

o f A rizo n a, its B o ard o f Edu catio n , an d i ts Su p erin ten d en t o f P u

b l ic In stru ctio n .” Ho rn e , 5 5 7 U.S. at 4 4 1

. T h e Sp eak er f o r th e State Ho u se of Rep resen tativ es an d th e P resid en t o f t h e State S en ate in terv en ed i n th e su i t

as rep resen t ativ es o f th eir resp ectiv e leg islativ e b o d ies in 2 0 0 6. Id

. at 4 4 3

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constitutional requirement of uniform statewide school funding .” Horne
, 557 U.S. at 442. I n 2005, the district court held th e S t a te in contempt for f ailing to “appropriately a nd constitutionally fun[ d] the state’s EL L prog rams,” a nd commanded the Ariz ona leg islature (which at the time was not a part y t o the suit) to allocate more f unds to EL L instruction, or be faced w i t h c ontempt sanctions totaling millions o f dollars per day

. I d

. at 441–42 (alteration in orig inal) (internal quotation marks and citation omitted).

I n March 2 006, a f

ter accruing over $20 million in f ines, the Ariz ona leg islature passed House B ill 2064 (HB 2064), “which was desig ned to implement a permanent funding solution to the problems identified by the District Court order in 2000.” Id

. at 442. HB 2064 increased EL L incremental funding for EL L students, a nd created two new f

unds “to

cover additional costs of EL L prog ramming .” Id . at 442–43. HB 2064 also e stablished the A riz ona Eng lish L an g uag e L earners Task F o rce (Task F orce), which was charg ed with developing and adopting research-based models for EL L instruction using the structured Eng lish immersion approach. The statute directed the Task F orce to “ identify the minimum amount of Eng lish lang uag e development [ E L D] per day for all models,” b ut sp e c i fi e d that “the task force shall develop separate models f

or the first y ear in w hich a pupil is classified

as an Eng lish lang uag e learner that includes a m i nimum o f four hours per day o f Eng lish lang uag e development.” A .R.S. § 15-756.01(C) (2006).

Shortly thereafter, the leg islature intervened i n the
ong oing litig ation to defend its interests, and r equested an evidentiary hearing on a motion for Rule 60(b)(5) relief from judg ment in lig ht of the passag e of HB 2064. H orne , 5 57 U.S.
at 443. The district court denied the Rule 60(b)(5) motion,F L O R E S V

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finding that H B 2064 was fatally flawed (and inadequate) in its allocation of E L L funding f or three reasons: th e i n c rease in funding “was n o t r ationally r elated to effective EL L
prog r amming ”; the bill imposed a n “ir r a tional” two-y ear limit

on fu n d i ng for e ach EL L student; and HB 2064 “violated federal law b y using federal funds to ‘supplant’ rat h e r than ‘supplement’ state funds.” Id . at 443–44.

Our court vacated the district court’s order, and remanded for an evidentiary hearing to determine whether Rule 6 0(b)(5) relief was warranted. Id

. at 444. T he district c o u r t a g ain denied the Rule 60(b)(5) motion

. W e a ffirmed the order on

a p peal because petitioners had not shown “ either that there

are no lo n g e r incremental costs associated with EL L
prog r ams in Ariz ona,” or that Ariz ona’s “educational funding model was so altered that focusing on EL L -s p ecific incremental costs f

unding has b ecome irrelevant a nd inequitable.” F

lores v

. Arizona
, 516 F .3d 1140, 1169 (9th Cir. 2008).

The Supreme Court reversed. I t observed that the decision had not addressed the “critical question in this Rule 6 0(b)(5) inquiry ” of “ whether the objective of the District Court’s 2000 declaratory judg ment order— i.e.
, satis f a ction of the EEOA’s ‘appropriate action’ standard—has been achieved.” Horne , 557 U.S. at 450. I nstead, “the Court of Appeals used

a heig htened standard that paid insufficient a t t en tion to federa lism concerns” by concerning itself “only with determining whether increased E L L fun d ing complied with the orig inal declaratory

judg ment order.” Id . at 451. I n other words, “ the Court of Appeals f r amed a Rule 60(b)(5) inquiry that w as too narrow—one that focused a lmost ex clusively on t h e s ufficiency of incremental f unding ,” instead o f “ascertain[ ing ] whether ong oing enforcement of the orig inalF L O R E S V

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o r d er was supported by an ong oing violation of federal la w (here, the EEOA).” Id

. at 452, 454.

The Supreme Court remanded the c ase to the district court with detailed instructions “for a proper ex amination o f at least four important factual and leg al chang es that may warrant the
g ranting of relief from the judg ment: the State’s adoption o f

a new EL L

instructional methodolog y , Cong ress’ enactment of NCL B
, structural and manag ement reforms in Nog ales, and increased o verall education funding

. ” Id

. at 459. F inally
, the Court noted that “[ t] he r ecord contains no factual finding s

or evidence that any school district other than Nog ales failed (much less continues to fail) to provide equa l e d ucational opportunities to EL L students,” and questioned whether “the District Court h ad jurisdiction to issue a statewide injunction when it is n ot apparent that plaintiffs—a cl a s s o f Nog ales students and their parents—had standing to seek such relief.” I d

. a t 470–71. According ly
, the Court instructed the district
court to “vacate the injunction insofar as it e x t e n d s bey ond Nog ales unless the court concludes that Ariz ona is violating the EEOA on a statewide basis.” I d . at 472.

On remand, the F lores P l a intiffs e lected not to file a motion to ex pand the cl ass. The district court held a threeweek evidentiary hearing on the Sta t e D efendants’ Rule 60(b)(5) motion, and allowed the F lores Plaintiffs to present evidence of a statewide EEOA violation. The F lores Plaintiffs
argued that the State’s “adopt ion of models requiring that EL L students b e seg r eg ated for more than a y e ar in f our hours of daily Eng lish l a n gu ag e development class

. . . is not ‘appropriate action’ under the EEOA” because seg reg ationF L O R E S V

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prevents EL L students from “ acquir[ ing ] the academic credits
necessary to g raduate from hig

h school within four y e ars.” 2

After ex amin i n g the f

our factors the Supreme Court identified a s relevant to deciding the State Defendants’ Rule 60(b)(5) motion, the d istrict c ourt g r anted the motion with respect to N og a les b ecause “[ e] n ormous chang es have

occurr e d in the method by w hich Ariz o na delivers Eng lish lang uag e instruction since judg ment was entered in this case in 2000,” including the advent of NCL B
, the development o f the State’s g eneral academic test known as the A riz o na I nstrument to Measure Standards (AI MS)
, and the implementation of an Eng lish proficiency test used to classify pupils as EL L students. The district court also observed that “the state has seen the election o f a n e w Governor, a new Superintendent of Schools, and a new Attorney General,” a s well a s numerous chang es in the membership of the A riz o na leg islature. T he district court concl u d e d that the F lores Plaintiffs’ “evidence from a few school distric t s ” reg arding implementation of the four-hour model was “not sufficient to establish standing to bring a statewi d e c l aim.” I n addition, “Plaintiffs’ n e wly asserted claims are no t ‘ s t atewide’ in nature, but rather depend on specific implementation choices made at a district l e v el, thus requiring a district-by -district

a n a l y sis.” According ly
, the district court dismissed the statewide claims.

The F lores Plaintiffs filed this appeal.

2 T h e Flo res P lain tif

f s o rig in ally alleg ed th ree statew id e v io l atio n s o f th e EEOA
, in clu d in g th e m an n er in w h ich EL L stu d en ts are id entif ied
, an d h o w th e stu d en t s’ En g lish p ro f i cien cy is tested
, b u t d ecid ed o n ly to p ursu e th e “ im p lem entatio n o f th e F o ur Ho ur Mo d el acro ss th e state” o n ap p eal.F L O R E S V

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JURISDICTION AND STANDARD OF REVIEW

W e have jurisdiction under 28 U.S.C. § 1291. W e r eview for abuse o f d i s c r etion the district court’s decision g ranting the State Defendants’ Rule 60(b)(5) motion for relief from j u dg ment. United States v. Asarco, Inc.
, 430 F .3d 97 2
, 9 7 8 (9th Cir. 2005). W e review the district c o urt’s conclusions on questions of standing de novo

. Ellis v. City of Mesa
, 990 F .2d 1518, 1523 (9th Cir. 2003).

D ISCUSSION

The Supreme Court in Horne g ave the district co u r t detailed g uidance f

or reviewing the State Defendants’ motion for relief from judg ment on r e m a nd. 557 U.S. 433, 447–72 (2009). W e c onclude that the district court complied with the Supreme Court’s order, and that relief from judg ment was properly g ranted.

I.

Th e F lores Plaintiffs contend that Rule 60(b)(5) relief from judg ment was not warranted because the state law that mandates public school p olic i e s and practices for EL L s t h r o ug h out the State of Ariz ona continues to violate the EEOA. 3 They do not contest the district court’s finding s o f fact. I nstead, the y fi n d it “ inex plicabl[ e] ” that the court

3 T h e d istrict co urt ex p ressly “ lim it[ed ] its rev iew o f th e 6 0 (b )(5 ) m o tio n to No g ales” b ecau se it f

o un d th at th e “ im

p lem en t atio n d ecisio n s v ary f ro m d istrict to d istrict,” an d th at “ p l a i n tif f s h av e n o t estab l ish ed an y

‘ statew id e’ v i o latio n .” A cco rd in g ly
, w e also lim it o ur rev iew o f t h e d istrict

co urt’ s ru lin g o n th e State Def en d an t s ’ R

u le 6 0 (b )(5 ) ch allen g e to No g ales.F L O R E S V

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“concluded that the Task F orce models, with their four hour EL D requirem e n t , d id not violate the EEOA.” W e consider the F lores Plaintiffs’ arg

uments in turn.

Rule 60(b)(5) permits a court to relieve a party from final judg ment if “the judg ment h as been satisfied, releas e d
, o r discharg ed; it is based on an e arlier judg ment t h a t has been reversed or vacated; o r applying it prospectively is no long er equitable

. ” F ed. R. Civ. P. 60(b)(5). A court a buses its discretion when it refuses to modify an injunction o r consent decree in lig ht of “a sig nificant chang e either i n f a ctual conditions or in law” that “ren d e rs continued enforcement d e t r i mental to the public interest.” Horne
, 557 U.S. at 447 (internal quotation marks and citations o mitted). The abuseof-discretion standard is,

hig hly deferential to the trial court. Under this standard of revi ew, w e cannot simply substitute our judg ment for that of the district court, b ut m u s t b e left w ith the definite a nd firm conviction that the c ourt commit t e d a clear error of judg ment in reach ing its conclusion after weig hing the relevant factors.

United States v. Roston
, 986 F .2d 1 287, 1 291 (9th Cir. 1 993) (internal quotation marks omitted).

The Supreme Court admonished the district court for failing to e n gag e in the proper analy sis when it denied the State Defendants’ initial R u l e 60(b)(5) motion, “ask[ ing ] only whether petitioners had sat i s fied the orig inal d eclaratory judg ment order throug h increas e d incremental funding
, ” thereby “disreg ard[ ing ] the remand instructions to eng ag e in

a broad and flex ible Rule 6 0(b)(5) analy sis as to whe t h e rF L O R E S V

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chang ed circumstances warranted relief.” Horne
, 557 U .S. at 456–57. I t a lso criticiz e d our court for affirming the district court’s order, a n d “improperly substitut[ ing ] its o wn educational and budg etary policy judg ments for those of the
state and local officials to whom such decisions are properly entrusted.” Id

. at 455. I n other words, the “critical question in this Rule 6 0(b)(5) inquiry is whether the o bjective o f t h e District Court’s 2 000 de claratory judg ment o r der— i.e.
, s a tisfaction of the EEOA’s ‘appropria t e a c t i o n ’ s t a

n d a r d

— h a s been achieved.” Id . at 450.

As we have previously stated, “[ b ] ecause Section 1703(f)

was proposed as an amendment from the floor of the House, the r e i s v ery little leg islative history ” to shed lig ht on “the
scope o f the ‘appropriate action’ requirement” in the EEOA. Guadalupe Org. Inc. v. Temp e E l ementary School Dist.
, 587 F .2d 1022, 1030 (9th Cir. 1978). “The interp retation o f floor amendments unaccompanied by illuminatin g d ebate should adhe re c losely to the ordinary meaning of the amendment’s lang uag e.” Id .; see also Castaneda v. Pickard
, 648 F .2d 989, 1001 (5th Cir. 1981). The Supreme Court has instructed that the ordinary mea n i n g of “appropriate action” requires a State to “(1) formu l ate a sound Eng lish lang uag e instruction educational plan; (2) implement that p lan; a nd (3) achieve adequate results.” Ho rne , 557 U.S. at 459, n.8 (citing Castaneda
, 648 F .2d at 1009– 10). Determining whether the State is taking “appropriate action,” and whether relief from judg ment is therefore warr a nt e d
, requires attention
to “ federalism concerns,” which are “heig htened w hen, as in these cases, a f

e d eral court decree has the effect of dictating state or local budg e t priorities.” Id . at 448.

I n this case, “the lower courts

. . . misperceived both the
nature of the oblig ation imposed by the E E OA and theF L O R E S V

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breadth of the inquiry called for under Rule 60(b)(5).” Horne
, 557 U.S. at 459. To avoid further confusion, the Supreme Court g ave careful g uidance concerning each of t h e four factors that could warrant Rule 60(b)(5) r elief on remand, a nd the district c ourt made numerous factual finding s concerning each of those factors.

1. T he State’s Adoption of New ELL Instruction a l Methodology

The Supreme Court directed the district court to consider the State’s adoption of a new EL L instructional methodolog y , w h i c h the Court noted appears “sig nificantly more effective than biling ual education

. . . . I n lig ht of this, a proper analy sis of petitioners’ Rule 60(b)(5) motion should include fu rther factual finding s reg arding w hether N og ales’ implementation of SEI methodolog y

—completed in all of its schools b y 2 0 0 5

— c o n s titutes a ‘sig nificantly chang ed circumstan c e ’ t h a t warrants relief.” Horne , 557 U.S. at 461.

I n resp o n s e , the district court considered a number o f developments concerning the first fa c t o r

. I t found that in 2000, Ariz ona voters approved Proposi tion 203, A .R.S. §§ 15-751–15-755, which chang ed the primary method o f EL D in Ariz ona fr o m a biling ual education model to SEI

. Proposition 203 establ i s h e d a one-y ear g oal for EL L s to become p r oficient, and required annual testing a nd monitoring of the EL L p r og ram. A.R.S. §§ 1 5-752, 1 5-755. The shift from biling ual education to the SEI me t hodolog y required that all EL L students be p laced in Eng lish lang uag e classrooms and taug h t only in Eng lish. A.R.S. § 15-752.

Proposition 2 03 initially l eft the implementation of the SEI model to the individual school d istricts, but in 2006, theF L O R E S V

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Ariz ona leg islature passed HB 2064. A.R.S

. §§ 15-756–15- 756.13. H B 2 0 64 established an EL L T ask F orce charg ed with developing a rese arch-based model of EL L instruction in SEI methodolog ies, including a minimum of four hours o f d a i l y instruction in EL D for the first y ear, with the T a s k F orce t o d et ermine the number of hours in each y e ar thereafter (A.R.S. § 15-75 6

. 0 1); it deleg ated the duty o f identifying EL L s to the Superintendent of Public I nstruction (A.R.S. § 15- 7 5 6 ) ; i t r equired that the models be researchbased, w ith consideration paid to the siz e, location, g rade levels, and number of EL L s at the school (A.R .S. § 15- 756. 0 1 ) ; it required all school districts to adopt the Task F orce’s model, or submit an alternative model for approval (A.R.S. § 15-756.02(B )); i t mandated a uniform method o f assessing and reclassify

ing EL L students, and for monitoring reclassified students two y ears aft e r e x iting the prog ram ( A .R.S. § 15-756.06); it required at least annual testing o f EL L s to d etermine whether they should b e re-classified a s “Eng lish p roficient” (A.R.S. § 15-756.05(A), (B )); it created the Office of Eng lish L ang u ag e Acquisition Services, which

was to monitor the school districts’ i m p l e mentation of a nd

co mpliance with the models (A.R.S. § 15-756.07); and it require d t h e Task F orce to refine the models y early
, a s necessary (A.R.S. § 15-756.01).

The Task F orce met thirty -one times between September 2006 and September 2007, accepted drafts of pro p osed models, consulted ex perts, and held public hearing s before choosing a model. The Task F orce model g roups students b y proficiency
, and for f

our hours each day
, requires content that “empha s i z es the Eng lish lang u ag e itself” rather than “other ty pes of instruction, e. g. math, science, or social science.” However, “[ a] cademic c ontent can be u sed as a vehicl e for delivering EL D

. . . .” As the district court observ ed
, “ [ t] heF L O R E S V

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ex tent to which EL L students in the four hours of EL D a re

ex p osed to academic content can vary from school district to school district and fr o m school to school within a school district” because “[ t] he state does n o t p r e s cribe the kind o f academic content that should be us ed as a vehicle for d e l ivering Eng lish L ang uag e Development at various g r ade levels and the teachers h ave the f lex ibility to use the materials that they want.”

2. Congress’s Enactm ent of N o Child Lef t Behind

The Supreme Court a lso instructed the distr i ct court to consider whe t h e r the e nactment of NCL B “constitute[ s] a sig nificantly chang ed c ircumstance, warranting relief.” Horne
, 557 U.S. at 465. I t noted that the “orig inal d eclaratory judg ment order,” which “withdr[ e] w[ ] the authority o f state and local officials to fund and implement EL L prog rams that best suit Nog ales’ n eeds

. . . confli c t [ s ] with Cong ress’ determination of federal p olicy .” I d

. T h e Court found the
enactment of N CL B “probative in four pr incipal way s”: (1) it prompted the State to institute sig nificant structural a nd
prog r amming c hang es in its d elivery of EL L education; (2) it sig nificantly increased federal funding for education in
g eneral and EL L prog r amming in par t icular; (3) throug h its
assessment and reporting

requirements, it provides evidence of the p rog ress and a chievement of Nog ales’ E L L students; and (4) i t m akes a shift in federal education policy

. Id

. at 463–64.

The d istr i c t c o urt undertook its analy sis of this factor a s directed by the Supreme Court. I t concluded that NCL B “has made four major chang es to the delivery of EL D in N o g ales and throug h out Ariz ona: ( A) the devel o p m e n t o f the EL P [ Eng lish L ang uag e Performance standards]
, ( B ) the adoptionF L O R E S V

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of Annual Measurable Achievement Objectives (“AMAOs”), (C) accountability for failure t o a ch ieve AMAOs, a nd (D) increased funding .” The district court noted that, “ I n 2009, Nog ale s m e t its A nnual Yearly Prog r ess (AYP)
requirements a s required by NCL B b y reclassify ing more than 15% of its EL L stude n t s.” I n addition, NCL B “devises

an elaborate accountability structure for a district’s failure to achieve AMAOs, including the requirement of corrective actio n , NCL B § 1116(b)(7), and sanctions starting at decreased funding and culminating in a takeover o f failing schools. NCL B § 1116(b)(8).”

3. Structural and Managem ent Ref o r m s in Nogales

As to the third cha n ge—structural and manag ement reforms in N og ales—the Supr e me Court made clear that it

was “error” for “both courts [ to] refuse[ ] to co n s i d e r that Nog ales could b e taking ‘appropriate a c t ion’ to address lang uag e barriers even without having satisfied t h e orig inal order” throug h, for ex ample, Nog ales superintendent “ [ Kelt] Cooper’s structural, c urricular, and a cc ountability -based reforms.” Horne
, 5 57 U.S. at 4 66–67. According ly
, the district court f

ound that “[ b] eg inn ing with Superintendent Cooper a nd continuing with Superintendent McCo l loug h, Nog ales h a s implemented substantial structural a nd
manag ement reforms tha t have sig nificantly elevated its perform a n c e

. ” N o g a l e s ’ t eacher salaries are now “competitive within Ariz ona, and very competitive within its reg ion,” a nd it is “ no long er the case” that N og al e s h a s “inadequate teaching materials for both content and ESL cla s ses.” Nog ales “created a centraliz ed tex tbook adoption prog ram, which addressed the Court’s concerns reg arding the a dequacy

o f t e a c h i n g m a t e r i a l s , ” a n d “ e s t a b l i s h e d v a r i o u sF L O R E S V

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compensatory education prog rams including summer school and after-school tutoring .”

4. Increased Overall Education F unding

F inally
, the district court turned to the issue of fu n d i n g, the factor that l a y at the heart of its earlier orders holding Ariz ona in v iolation o f the EEOA. The Supreme Court noted that the “five sources of funding tha t c ollectively financed education in the State” at the t i m e the orig inal d eclaratory judg ment was entered “have notably increased since 2000,” and constitute “[ a] fourth potentially important chang e

. . . in Nog ales.” Horne
, 557 U.S. at 4 6 8

. O n r emand, the district
court acknowledg ed the “ s ev e r a l income streams” by which Ariz ona funds local e d

ucation, and c a refully ex amined the funding chang es statewide, and i n Nog ales. Statewide equaliz a tion funding (intended to make sure all districts a re

on a level playing field) increased from $ 3

. 413 billion in 2000 to $5. 7 7 6 b illion in 2010. As a result of NCL B
, Ariz ona’s share of Ti t l e I f unding increased from $359,24 7
, 9 9 7 in 2000 to $582,931,537 in 2010. The 2009 American Recov e ry and Reinvestment Act “sent a bout o ne and a half billion dollars in F Y 2010 for education purposes” “[ f] or Ariz ona alone.” I n 2000, Nog a les vot e rs approved a bu d ge t override, “ and the funds it has g enerated have increased from $ 895,891 in F Y 2001 to $1,7 5 0,825 in F Y 2010.” F unding per pupil in Nog ales increased by 44% over the past decade, f

rom $3,675 in 2 000 to $5,306 in 2010. The
court c oncluded that “Nog ales h as a n effective E L D prog ram. I ts F EP-2s [ students who h ave r eclassified as profic i en t for
two y ears] rank hig her on AI Ms r eading
, w riting
, a nd mathematics at all elementary and middle g rades,” and “[ i] ts reclassification rates consistently have placed at the top o r near the top of nine sister districts at the border.”F L O R E S V

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W e conclude that the district court carefully followed the Supreme Court’s instr u c tions on remand, and did n ot abuse i t s d iscretion in determining that in lig ht of the chan g e d circumstances in Nog ales and in the State over the course of more than a decade, Rule 60(b)(5) relief was warranted.

II.

W e turn now to the question of w h e ther the F lores Plaintiffs have alleg ed a statewide violation o f t h e EEOA. Our conclusion that Rule 60(b)(5) relief was properly g ranted because the State Defendants’ EL L prog rams i n Nog ales constitute “appropriate action” u n der the EEOA prefigures

our conclusion that Ariz o na is not violating the EEOA o n a statewide b asis. A s t h e State Defendants observe, the

ex p ansion of the injunction statewide “was made solely as a

means (disag reed with by the Supr e me Court) of a ffording effective relief in [ Nog ales]

. Thus, with [ N o gales] ’s shortcoming s having been fix ed, and w ith it now conducting

an effective EL D prog r a m , the rationale for g ranting statewi de relief collapses.” Nevertheless, because the Supreme Court instructed the district court, if “press[ ed] ,” to determine whether “Ariz o na is violating the EEOA on a statewide basis,” we p ro c e e d with an analy sis of the F lores Plaintiffs’ statewide claims on appeal.

W e note initially

that the F lores Plaintiffs represent only

a class of Nog ales students and their parents. The class was

never certified to ex tend statewide
, and the F lores Plaintiffs declined to seek an ex pansion of the class. I t appears that the district court undertook no standing analy sis when it ex tended its i n j u nction to apply statewide. In its discussion of the district court’s e n try of statewide relief, the Supreme Court observed thatF L O R E S V

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[ t] he record contains no factu al finding s o r evid e n c e that any school district other than Nog ales f ailed (much less continues to fail) to provide equal educational opportunities to EL L students.

. . . Nor have respondents

ex p lained how the EEOA could justify a statewi d e injunction when the o n ly violation claimed or proven w as limi t e d to a sing le school district. See [ Missouri v. ] Jenkins
, 515 U .S.[ 7 0
, ] 89–90 [ (1995)]
, 115 S. Ct. 2038; Milliken [ v

. Bradley ]
, 4 33 U.S.[ 267,] 280 [ (1977 )]
, 9 7 S. Ct. 2749. I t is not even clear that the District Court had jurisdiction to is s u e a statewide injunction when it is not apparent that plaintiffs—a clas s o f Nog ales students and their parents—had standing to seek such relief.

Horne
, 557 U.S. at 470–71. According ly
, “ [ a] ssuming that petitioners, on remand, press their objection to the statewide

ex tension of the remedy
, the District Court should vacate the injunction insofar a s it ex tends bey o n d Nog ales unless the
court c o ncludes that Ariz ona is violating the EEOA on a statewide basis.” Id . at 472.

On remand, the district court permitted th e Flores Plaintiffs to present e vidence of a statewide violati o n o f the EEOA that w o u l d justify the continued enforcement o f the statewide remedy

. T h e district court concluded that, “Plaintiffs’ n e wly asserted claims are not ‘state w i d e ’ in nature, but r ather depend on specific implementation choices made at the district level.” W e hold that t h e d i strict court properly d ismissed the F lores Plaintiffs’s statewide c laims because the F lores Plaintiffs are not attacking the validity ofF L O R E S V

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a statewide p olicy ; rather, t h ey are challeng ing local implementati o n a f

t er the first y ear of the four-hour Eng lish lang uag e requirement, and its alleg ed neg ative effects o n EL L students, some of whom may receive less academic c o n tent than their Eng lish-speaking peers. 4

I n Jenkins
, the Court made clear that, “[ T] he nature of the

. . . r emedy is to be determined by the nature and scope of the

. . . violation.” Jenkins
, 515 U.S. at 89 ( alteration in orig inal);

see also Horne
, 557 U .S. at 470–71. “The proper response to

an intradis t r i ct v iolation is an intradistrict remedy

. . . . ” Jenkins
, 515 U.S. at 90. “[ O] nly if th e r e h a s been a

s y stemwide impact may there b e a sy stemwide remedy , ” Lewis v. Ca s ey , 518 U.S. 3 4 3, 359–60 (1996) (quoting Califano v. Y

amasaki
, 442 U .S. 682, 702 (1979) (alteration in orig inal)). I n other w ords, in o rder to seek statewide r elief on behalf of all EL L students in A riz ona, the F lores Plainti ffs
must demonstrate “widespread actual injury ,” not just “isolated instances of actual injury ,” as a result of Ariz ona’s alleg ed violation of the EEOA. See Lew i s , 5 1 8 U.S. at 349. This r equirement “derives u ltimately fro m t h e doctrine o f standing
, a constitutional principle that prevents courts of law from undertaking tasks assig ned to the political branches.” Id

. at 349. Article I I I standing requires, (1) that the plaintiff have suffered a c oncrete and particulariz ed “injury in fact,” which is neither speculativ e n or conjectural; (2) that there b e a causal connection b etween the injury alleg ed an d the

4 T h e Flo res P lain tif

f s are n ot m ak in g a sep arate claim th at t h e m o d el’ s seg reg atio n of EL L s tu d en ts v i o lates th e Fo u rteen th A m en d m ent

. In f

act, th e Flo re s P l a in tif

f s disclaim th is th eo ry

. In stead
, th ey arg u e th at seg reg atin g s tu d en ts af

ter t h e f irst y ear v io lates th e EEOA b ecau s e i t d en ies th em access to th e sam e acad em ic co n t en t as th eir n o n

- EL L p eers. T h is claim i s th e r e fo r e an altern ativ e arg um en t f o r w h y A rizo n a’ s f

o urh o ur EL D m o d el v io lates th e EEOA

.F L O R E S V

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challeng ed conduct; and (3) that it “be ‘likely ,’ as opposed to merely ‘ speculative,’ that the injury will be ‘redr e s s e d b y a favorable decision.’” Lujan v. Defenders of W ildlife
, 504 U.S. 555, 560–61 (1992). And when plaintiffs seek a sy stemwide injunction for widespread wrong s, they must demonstrate t hat the ex pansive scope of the injunction soug ht is no b r o a d e r than necessary to remedy the “ inadequacy that produ c ed the injury in f

act that the plaintiff has established. ” C asey , 518 U.S. at 357. This is because

standing is n ot dispensed in g ross. I f the rig ht
to complai n o f one administrative deficiency automatically c onferred the r ig ht to complain of a ll administrative deficiencies, any citiz en ag g r iev e d in one r espect could bring the whole structure of state administration before the c ourts for review. That is of course n ot the law.

Lewis , 518 U.S. at 358 n.6 (1996).

The F lores Plaintiffs argue that they have standing to raise statewide claims because of “the inevitability of the statewide impact that any ruling on the Plaintiffs’ claims, favorable or unfavorable, will have.” H o we ver, the possible effects o f a speculative, f

u ture court-ordered remedy are insufficient to confer standing on the F lor e s Plaintiffs to bring their statewide claim in the f

irst instance. See A m

. C i v il Liberties Union of Nev. v. Lomax
, 471 F .3d 1010, 1015 (9th Cir. 2 006) (“W hen e valuating whether these three elements are present,

w e must look at the facts as they exist at the t i m e t h e complaint was filed .”) (internal quotation marks om itted) (emphasis in orig inal). The F lores Plaintiffs have not established “ widespread actual i n jury ” as a result o fF L O R E S V

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Ariz ona’s alleg ed v iolation o f the E E OA, Lewis
, 518 U.S. at 349, and therefore, have not “ex plained how the EEOA could justify a statewide injunction,” Horne , 557 U.S. at 470.

The F lores Plaintiffs appear to be challeng ing the fo urhour model as facially violating the EEOA because A riz o na does not r equire di s t r i cts “ to provide EL L students with an opportunity to recover missed academic con t e n t.” I n reality
, they are attacking the implementation o f the four-hour model, and its alleg ed neg ative effects on ELLstudents. I ndeed, the F lores Plaintiffs admit that they are not challeng ing the model

as applied to all EL L s t u d e nts: “Plaintiffs believe that the model s should b e g iven a chance to work for first y e ar Eng lish lang u ag e learners a s the L e gi slature prescribed.” I nstead it is the “[ c] ontinued placement of e l e m entary a nd hig h school students in the four hour model after the first y e ar [ that] constitutes a failure to take ‘appropriate action’ . . . .”

The F lores Plaintiffs’ chief complaint is that the four-hour model is d efective ( i.e.
, does not con s t i tute “appropriate action” under the E E O A) because “[ t] he state does not require school districts to p rovide EL L students with an opportunity to recover the academic content that they missed while they were in the four hour model and makes no effort
to determine whet h e r EL L students have been deprived o f academic content as a result of being placed in four hours o f EL D.” B ut the EEOA i m p o ses no such requirement on the school districts; it requires only that a State “‘take appropriate action to ove rcome lang uag e barriers’ without specify ing
p articular actions that a State must take.

. . . C o n gr e s s intend e d to leave state a nd local educational authorities a sub stantial amount of latitude in choosing the prog rams a nd techniques they w ould u se to meet their oblig ations under the EEOA.” H

orne , 557 U.S. at 440–41 ( quoting Ca s taneda v

.F L O R E S V

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Pickard
, 648 F .2d 989, 1009 (5th Cir. 1981)); cf. Guadalupe
, 587 F .2d at 1030.

T he record is replete with evidence that underscor es t h e

ex tent to w hich implementation o f t h i s model—and more specifically
, the academ ic c o ntent that EL L students receive—varies from d istrict to district. F or ex ample, Humboldt U nified School D istrict incorporates academic standards promulg ated by the State into its EL Lcurriculum, and delivers content-based instruction that conforms to those standards. I t also provides before-and-after-school prog r ams,

as well as summer school classes, to d eliver academic c ontent to E L L students. 5 Amphitheater Hig h School in the Amphitheater Public School District works with EL L students to p lace them in mainstream core classes, like math,
at the same time that they are learning Eng lish in four-hour blocks. This district-by -district implementation of a g eneral, State-mandated e ducational f ramework is consistent with the requirements of the EEOA. Such local varia t i on makes it impossible for the F lores Plaintiffs to establish a widespread, homog eneous injury sufficient to justify statewide injunctive relief.

T h e F lores Plaintiffs also contend that “seg reg ation” o f EL L students bey ond the f i r s t y ear violates the EEOA because, by definition, it is not necessar y t o achieve

5 A s t h e Flo res P lain tif

f s n o te, HB 20 6 4 lim its “ ‘ co m p en s a t o r y in stru ctio n ’ ou tsid e th e reg u lar sch o o l d ay

. . . to En g lish l an g u ag e in stru ctio n an d d o es n ot in clu de p ro v id in g in s tru ctio n to EL L stu d en ts in acad em ic co n ten t areas th at th ey m ay h a ve m i ssed as a resu l t of
p articip atin g in th e T ask Fo rce m o d els.” Ho w ev er, th is d o es n ot ch an g e th e f act th at, as w i th th e stan d ard f o ur h ours o f EL D in stru ctio n d urin g th e sch o o l d ay , th e am o un t o f co r e a c a d em i c co n ten t d issem in ated d urin g

co m pen sato ry in stru ctio n

v aries b y sch o ol d istrict.F L O R E S V

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Ariz ona’s stated a c ademic g oal of profici e n c y within o ne y ear. They frame the injury that stems from this alleg ed violation as a denial of EL L students’ educatio n al opportunities. The argument is therefore duplicative of their contention that the four-hour Eng lish lang uag e requir e m e n t violates the EEOA becaus e i t results in EL L students receiving less acad emic c ontent than their Eng lish-speaking
peers. This injury cannot p r o vide a basis for a statewide remedy because the four-hour m o del is implemented differently across the State. F or ex ample, the model ex plicitly al l o w s EL L students who have achieved an “intermediate” level of Eng lish proficiency and have pass e d ce r t ain tests to be ex cused from up to two hours per day of EL D instruction. A.R.S. § 15-752(A) p ermits schools and districts to request approval of an alte r n ative model, which in the case o f Glendale Union Hig h School has resu l t ed in a prog ram that allows juniors and seniors who are o n track to gr a d u a t e a nd who meet certain other requirements t o be ex empted from one to two hours of EL D instruction.

The F lores Plaintiffs are not arguing that four hours o f EL D instruction violates the EEOA per se, but rather that the State is violating the E E OA throug h proficiency g ro u p i ng after the first y ea r, a n d by not a lso requiring districts “to provide EL L students with an opportunity to recover missed academic content.” Th e s e a r e not statewide claims; instead,
t hey contemplate a lleg e d injuries that result f ro m t h e implementa t i on of the four-hour model, which varies from district to district, and cannot form the bas i s o f claims for statewide injunctive relief.F L O R E S V

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CONCLUSION

The Supreme Court g ave clear instructions to the district
court on remand. W e conclude that the district court carefully followed those instructions. I t was not an abuse of discretion
to g rant the State Defendants’ Rule 60(b)(5) motion because chang ed circumstances warrant g ranting the State Defendants relief f rom judg ment. L ikewise, the F lores Plaintiffs have not alleg ed a statewide violation of the EEOA that is adequate to justify the continued enforcement of a statewide injunction.

The pending motions are denied a s moot. Each party shall bear its own costs on appeal.

AF F IRMED.

F RI EDL A

ND, Circuit J udg e, concurring in Parts I

. 1–I .4 o f the majority

opinion, and concurring

in the judg ment:

I ag ree with the majority that the district court obey e d the Supreme Court’s directives reg arding how the remand in this

case should proceed, and that the district court did not abuse its discretion in, according ly
, g ranting Rule 60(b)(5) relief to Def e n d a nts. I nevertheless w rite separately because I understand Plaintiffs to be making additional arguments not addressed by the majority

, and I believe their arguments merit

a response. Specifically
, I understand Plaintiffs to be arguing that, on i t s f

ace, the four-hour Eng lish L ang uag e Development (“EL D ”) model a dopted by the state Task F orce violates the Equal Educational Opportunities Act ( “ EEOA”) because it requires “ seg reg ation” o f Eng lish L ang uag e L earners ( “EL L s”) f

or f our hours per day even after their firstF L O R E S V

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y ear of EL D instr u c t i on. I also understand Plaintiffs to be
arguing that, even if the orig inal statewide injunc t i on is no long er justified, an i n

j u n ct ion should remain in place in Nog ales because Nog ales’s implementation of the four-hour EL D model r e s u l t s in loss of academic c ontent a nd

unnecessar

y seg reg ation for EL L s a nd thus violates the EEOA.

I n r esponse to those a rg uments , I would hold that althoug h Plaintiffs have standing to bring a facial challeng e to the four-hou r E L D model adopted by the Task F orce for

use statewide, their c hal l e ng e fails o n the merits. F urther, I would h old that Plain tiffs h ave n ot shown that their new objection s to the four-hour model’s implementation in Nog ales c onstitute E E OA violations that require maintaining an injunction in this case.

I.

Plaintiffs a

rg ue that t he “four hour EL D r equirement bey ond the first y ear violates the EE O A b e cause the deg r ee of seg reg ation required by the State is not nece ssary to achieve the State’s academic g oal of proficiency in one y ear.” I understand this to be a f acial challeng e to the statewide imposition of the four-hour EL D model.

I n my view, Plaintiffs have standing to bring such a facial challeng e. Plaintiffs have described a c oncrete a nd particulariz ed “injury in f act” because they are subject to the four-hour model, and thus to its requirement that th e y l e a r n Eng lish in a separate classroom. Lujan v. Defe n d e rs of W ildlife
, 504 U.S. 555, 560 (1992). That injury is caused b y the four-hour model, and it is likely that chang ing the model would lead Nog ales t o ch a n g e its EL D prog ram, so theF L O R E S V

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c ausation and redressability requirements f or standing ar e also met. See id. at 5 60–61. T h a t P l aintiffs are a ll from Nog ales d oes not p r ev e nt them from having standing to facially challeng e what is effectively a state law, because the statewide r e quirement im p a cts them personally

. See Ariz. Libertarian Party, Inc. v. B a yless
, 351 F .3d 1 2 77, 1 2 8 0–81 (9th Cir. 2 003) ( p e r c uriam) (holding that the plaintiffs h ad standi n g to challeng e a statewide rule g overning primary elections, even thoug h primary elections were a dm i n i stered
at the county level); Burdick v. Takushi
, 937 F .2d 415, 417–18 (9th Cir. 1 9 91) (holding that the plaintiff had standing
to challeng e a statewi d e p r ohibition on write-in voting that affected h im personally
, e ven thoug h an “ order striking down the p rohibition may apply to races in which [ h e co u l d n ot] vote”).

On the merits, however, this f acial challeng e fa i l s. I t is
not impermissible seg reg ation to g roup students by lang uag e ability as long as there is a leg itimate educational reason for doing so. See Castaneda v. Pickard
, 648 F .2d 989, 998, 1009 (5th Cir. Unit A J une 1981). W e o w e deference to st a te edu c a t ional ex perts’ opinions, including the Task F orce members’ determination here that students learn Eng lish best when taug ht in a separate classroo m

. S e e H orne v. Flores
, 557 U.S. 433, 4 68 (2009) (“The EEOA’s ‘appropriate action’ requirement g rants States broad latitude to desig n, fund, a nd impleme n t E L L prog rams that suit local needs and account for local conditions.”); Castaneda
, 648 F .2d at 998, 1009 ( recogniz ing that school districts have discretion to dec i d e whether lang uag e ability g rouping is appropriate); cf. LaVine

v. Blaine Sch. Dist.
, 2 57 F .3d 9 81, 9 88 (9th Ci r

. 2 001) (recogniz ing the “ substantial deference” owed to educators in
t h e F irst Amendment contex t because “[ t] he daily administration of public education is committed to sc hoolF L O R E S V

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officials”). I t was not unreasonable fo r t he Task F orce to conclude that separating students by lang uag e proficiency for
up to f our h ours each day would enable EL L s to develop their En gl i s h lang uag e skills most quickly

. I ndeed, Plaintiffs do
not even dispute this g e n e r al p rinciple. As the majority observes, Plaintiffs a dmit that they are not challen g i n g the four-hour model as applied to first-y ear EL L s. Pla i n t i ffs offer no support for their p roposed distinction between the first and subsequent y e ars of E L D—either in terms o f why study ing in a separate classr o o m becomes less helpful for lang uag e acquisition after t h e first y ear or in terms of why this separation becomes more harmful. Their facial challeng e to th e statewide requirement that E L L s r eceive Eng lish i n s truction in a separate classroom after the first y ear i s therefore unavailing

.

II.

I understand Plaintiffs to be making the additional
argument that Nog ales’s implementation of the f o u r-hour model violates the E EOA by providing insufficient access to academic content for EL L s an d b y separating EL L s from their mainstream peers more than is necessary to teach them Eng lish. These arguments differ fr o m Plaintiffs’ orig inal claim in this lawsuit (t h a t Nog a les’s inadequate funding o f EL D v iolated the EEOA), a n d Plaintiffs’ new arguments a re not clearly addressed by the four consideratio ns that the Supreme Court articulated in response to the o r i g inal funding

based c laim. 1 Horne
, 557 U.S. at 459. A s students from

1 A lth o u g h th ese claim s w ere n ot p art o f P lain tif f s’ o rig in al law su it, an d

a lth o u g h P lain tif

f s p resen ted t

h ese arg um ents in th e d i strict co urt p rim arily as statew id e ch allen g es to t h e f o ur- h o ur EL D m o d el, th e d istrict

co urt ex p licitly reach ed t

h ese arg u m en ts, co n stru in g th em as ch allen g esF L O R E S V

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Nog ales, there is no question that Plaintiffs have standing to make these arguments. O n the current r ecord, however, t he

c h alleng e s to the implementation of the four-hour model i n Nog ales fail on the merits.

W ith reg ard to E L L s’ access to academic co n t ent in Nog ales, the district court found that “Nog ales has an effective EL D p rog ram.” B ased on the performan c e o f former EL L s in Nog ales, this factual finding was not clearly

erroneou s

. Fo rmer E L L s who have been classified a s Eng lish -proficient for at least two y ears (“F EP-2s”) met o r

ex c e eded state and district averag e s on AI MS tests in almost all s ub j ect-g r ade combinations in 2006–2009—all of the
y ears for which AI

MS data are available in the record.

The district court also approp r i ately found that Nog ales provides substantial support f or E L L s and former EL L s to compensate for any diminished e x posure to academic c ontent resulting from EL D

. F or e x ample, Nog ales o ffers summer school and after-school tutoring

. These p rog rams cover academic subject areas bey ond Eng lish, including support for science and math. The fact that F EP-2s in Nog ales had a hig h school g raduation r ate over 90% each y ear between 2006 a nd 2010 also supports the conclusion t h at EL L s are eventually

ex p osed to necessary a cademic content.

W ith re g ard to their seg reg ation alleg ations, Plaintiffs
argue that, pursuant to g uidance provided by the Department of Education’s Office for Civil Rig hts (“OCR”), Nog ales’s

to No g ales’ s im

plem en t atio n

o f th e T ask Fo rce m o d el. Def en d an ts h av e

n o t arg u ed th at P l ain tif

f s w aiv ed th ese N o g ales- sp ecif ic arg u m en ts b y n o t p resen t in g th em m o r e d istin ctly b elo w , or by n o t raisin g th em earlier in th e litig atio n

.F L O R E S V

. H UP P E

N T H A L 32

impleme n t a t ion of the four-hour model violates the EEOA because it is not “the least seg reg ative man n er” of EL D

. “Dear Colleag ue” L ette r f rom U.S. Dep’t of J u stice, Civil Rig hts Div., and U.S. Dep’t of Educ., Office for Civil Rig hts 22 (J an. 7, 2015), avail a ble at http://www2.ed.g ov/about/ offices/list/ocr/letters/colleag ue-el-201501.pdf. T he OCR letter interprets the EEOA a s requiring schools to “avoid
unnecessary seg reg ation of” E L L s, and opines that a prog ram that separated EL L from non-EL L students “in subj e cts like phy sical e ducation, art, and music” or “during activity p eriods outside of classroom instruction” probably would violate this requirement. Id. Assuming tha t t he OCR letter correctly interprets the EEOA, Plaintiffs have not p ut forward evidence showing t h at implementation of the four-hour model in Nog ales results in lang uag e-ability -based grouping for more than the EL D portion of the day

. To the contrary , Defendants have presented evidence that EL L s in Nog ales participate in

ex tracurri c u l a

r a c t i v ities along side non-EL L s, a nd that f ormer EL L s have access to the full academic curriculum.

* * *

The record does not contain enoug h y ears of EL L performance data after the impleme n tation of the four-hour model to be certa i n o f t he model’s effectiveness at teaching Eng lish or of its long -term impact on overall academic

success. The district court appropriately concluded, however, that, based on the evidence that does ex ist, Plainti f f s could
not show their new challeng es t o t h e implementation o f the four-hour model in Nog ales require maintaini ng an injunction.

I f e v i d ence of a

n EEOA violation emerg es in the future,

a new lawsuit could of c ourse be broug ht. B ut the districtF L O R E S V

. H UP P E

N T H A L 33

court h ere correctly concluded that the current lawsuit “is no long er the vehicle to p ursue the my riad of educational issues” about which Plaintiffs a r e concerned. The district court appropriately concluded that t h e injunction imposed in this law s u i t is no long er justified b y Plaintiffs’ orig inal claims, and that their new claims fare no better. The district court therefore did not err in vacating the injunction.