FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MIRIAM FLORES, individually and as

a parent of Miriam Flores, minor

child; ROSA RZESLAWSKI,

individually and as parent of Mario

Rzeslawski, minor child,

Plaintiffs-Appellants,

v.

JOHN HUPPENTHAL, Superintendent

of Public Instruction of the State of

Arizona; STATE OF ARIZONA,

Defendants-Appellees,

SPEAKER OF THE ARIZONA HOUSE OF

REPRESENTATIVES AND PRESIDENT

OF THE ARIZONA SENATE,

Intervenors-Appellees.

No. 13-15805

D.C. No.

4:92-cv-00596-

RCC

OPINION

Appeal from the United States District Court

for the District of Arizona

Raner C. Collins, Chief District Judge, Presiding

Argued and Submitted

January 12, 2015—San Francisco, California

Filed June 15, 2015
2 FLORES V. HUPPENTHAL

Before: J. Clifford Wallace, Milan D. Smith, Jr.,

and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.;

Concurrence by Judge Friedland

SUMMARY*

Equal Educational Opportunities Act

The panel affirmed the district court’s order, on remand

from the United States Supreme Court, granting a motion for

relief under Fed. R. Civ. P. 60(b)(5) from a judgment for

alleged violations of the Equal Educational Opportunities

Act, and vacating an injunction granting statewide relief to a

class of English Language Learners and their parents in

Arizona’s Nogales Unified School District.

The panel held that the district court complied with the

Supreme Court’s order and did not abuse its discretion in

granting defendants’ Rule 60(b)(5) motion because the

circumstances surrounding the implementation and funding

of English Language Learner programs at the state and

national levels had changed substantially since 2000, when

the judgment was entered, and the current programs

constituted “appropriate action” under the EEOA.

The panel further held that plaintiffs had not shown that

Arizona was violating the EEOA on a statewide basis, and the

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
FLORES V. HUPPENTHAL 3

facts alleged by them were insufficient to justify the

maintenance of a statewide injunction. The panel concluded

the plaintiffs were not attacking the validity of a statewide

policy; rather, they were challenging local implementation

after the first year of a four-hour English Language

Development requirement, and its alleged negative effects on

English Language Learner students, some of whom might

receive less academic content than their English-speaking

peers. The panel held that plaintiffs did not demonstrate

standing to raise statewide claims.

Judge Friedland concurred in Parts I.1-I.4 of the majority

opinion, which addressed the motion for relief from

judgment, and she concurred in the judgment. Judge

Friedland agreed with the majority that the district court

obeyed the Supreme Court’s directives regarding how the

remand in this case should proceed, and that the district court

did not abuse its discretion in, accordingly, granting Rule

60(b)(5) relief to defendants. Judge Friedland wrote

separately to address additional arguments she understood

plaintiffs to be making. Judge Friedland would hold that

although plaintiffs had standing to bring a facial challenge to

the four-hour English Language Development model adopted

for use statewide, this challenge failed on the merits. She

also would hold that plaintiffs did not show that their new

objections to the four-four model’s implementation in

Nogales constituted EEOA violations that required

maintaining an injunction in Nogales.
4 FLORES V. HUPPENTHAL

COUNSEL

Timothy M. Hogan (argued), and Joy E. Herr-Cardillo,

Arizona Center for Law in the Public Interest, Phoenix,

Arizona, for Plaintiffs-Appellants.

Melissa Iyer (argued), and Michael Dulberg, Burch &

Cracchiolo, P.A., Phoenix, Arizona, for DefendantsAppellees.

Thomas C. Horne, Attorney General, Leslie Kyman Cooper

and Jinju Park, Assistant Attorneys General, Phoenix,

Arizona, for Defendants-Appellees State of Arizona and

members of the Arizona State Board of Education in their

official capacity.

David J. Cantelme (argued), D. Aaron Brown, and Samuel

Saks, Cantelme & Brown, P.L.C., Phoenix, Arizona, for

Intervenors-Appellees.

Jocelyn Samuels, Acting Assistant Attorney General, Dennis

J. Dimsey and Erin H. Flynn, Attorneys, United States

Department of Justice, Civil Rights Division, Appellate

Section, Washington, D.C., for Amicus Curiae United States.
FLORES V. HUPPENTHAL 5

OPINION

M. SMITH, Circuit Judge:

Plaintiffs-Appellants are a class of English Language

Learners (ELLs) and their parents (the Flores Plaintiffs) in

Nogales Unified School District (Nogales). They appeal from

the district court’s order granting the Superintendent of

Public Instruction for the State of Arizona, the State of

Arizona, the Arizona State Board of Education, the Speaker

of the Arizona House of Representatives, and the President of

the Arizona Senate (collectively, the State Defendants) Rule

60(b)(5) relief from a judgment for alleged violations of the

Equal Educational Opportunities Act (EEOA), 20 U.S.C.

§§ 1701–21. The district court also vacated its earlier

injunction granting the Flores Plaintiffs statewide relief

because it determined that the Flores Plaintiffs had not

established a “statewide” violation of the EEOA. In arriving

at its decisions, the district court followed the instructions of

the Supreme Court in Horne v. Flores, 557 U.S. 433 (2009).

On appeal, the Flores Plaintiffs argue that the district

court erred because, 1) the four-hour English language

requirement imposed on ELLs violates the EEOA because “it

results in ELL students receiving less academic content than

their English-speaking peers and the State neither provides,

nor requires school districts to provide, ELL students with an

opportunity to recover that missed content,” and it segregates

ELL students from their English-speaking peers “[if] the goal

of proficiency within one year has not been achieved”; and

2) the Flores Plaintiffs “have standing to challenge a Statemandated policy intended to bring about a uniform method of

English language instruction to all ELL students in all

districts in Arizona.”
6 FLORES V. HUPPENTHAL

We hold that the district court did not abuse its discretion

in granting the State Defendants’ Rule 60(b)(5) motion for

relief from judgment because the circumstances surrounding

the implementation and funding of ELL programs at the state

and national levels have changed substantially since 2000,

and the current programs constitute “appropriate action”

under the EEOA. We further hold that the Flores Plaintiffs

have not shown that Arizona is violating the EEOA on a

statewide basis, and that the facts alleged by them are

insufficient to justify the maintenance of a statewide

injunction.

FACTUAL AND PROCEDURAL BACKGROUND

In 1992, the Flores Plaintiffs filed a class action suit on

behalf of “all minority ‘at risk’ and limited English proficient

children . . . now or hereafter, enrolled in the Nogales Unified

School District . . . as well as their parents and guardians.” 

Horne v. Flores, 557 U.S. 433, 439–40 (2009). The Flores

Plaintiffs requested a declaratory judgment holding the State

of Arizona, the Arizona State Board of Education, and the

Superintendent of Public Instruction responsible for violating

the EEOA, which provides in relevant part:

No state shall deny equal educational

opportunity to an individual on account of his

or her race, color, sex, or national origin, by–

. . .
FLORES V. HUPPENTHAL 7

(f) the failure by an educational agency to take

appropriate action to overcome language

barriers that impede equal participation by its

students in its instructional programs.

20 U.S.C. § 1703 (emphasis added).

In 2000, after a bench trial, the district court concluded

that the State Defendants1 were violating the EEOA by

providing insufficient funding to ELL students in Nogales.

Flores v. State of Arizona, 172 F. Supp. 2d 1225 (D. Ariz.

2000). Later that year, Arizona voters passed Proposition 203,

which implemented the “sheltered English immersion” (SEI)

approach statewide, and required “nearly all classroom

instruction” to be “in English but with the curriculum and

presentation designed for children who are learning the

language.” Ariz. Rev. Stat. § 15-751(5).

In 2001, just days after Congress passed the No Child

Left Behind Act (NCLB), 115 Stat. 1702, as added, 20 U.S.C.

§ 6842 et seq., the district court extended its original

declaratory judgment statewide, “even though the certified

class included only Nogales students and parents and even

though the court did not find that any districts other than

Nogales were in violation of the EEOA.” Horne, 557 U.S. at

441; No. CIV 92-596TUCACM, 2001 WL1028369, at *2 (D.

Ariz. June 25, 2001). The state attorney general acquiesced in

this statewide extension because of “the Arizona

 

1

 We note that plaintiffs originally sought relief against only “the State

of Arizona, its Board of Education, and its Superintendent of Public

Instruction.” Horne, 557 U.S. at 441. The Speaker for the State House of

Representatives and the President ofthe State Senate intervened in the suit

as representatives of their respective legislative bodies in 2006. Id. at 443.
8 FLORES V. HUPPENTHAL

constitutional requirement of uniform statewide school

funding.” Horne, 557 U.S. at 442. In 2005, the district court

held the State in contempt for failing to “appropriately and

constitutionally fun[d] the state’s ELL programs,” and

commanded the Arizona legislature (which at the time was

not a party to the suit) to allocate more funds to ELL

instruction, or be faced with contempt sanctions totaling

millions of dollars per day. Id. at 441–42 (alteration in

original) (internal quotation marks and citation omitted).

In March 2006, after accruing over $20 million in fines,

the Arizona legislature passed House Bill 2064 (HB 2064),

“which was designed to implement a permanent funding

solution to the problems identified by the District Court order

in 2000.” Id. at 442. HB 2064 increased ELL incremental

funding for ELL students, and created two new funds “to

cover additional costs of ELL programming.” Id. at 442–43.

HB 2064 also established the Arizona English Language

Learners Task Force (Task Force), which was charged with

developing and adopting research-based models for ELL

instruction using the structured English immersion approach.

The statute directed the Task Force to “identify the minimum

amount of English language development [ELD] per day for

all models,” but specified that “the task force shall develop

separate models for the first year in which a pupil is classified

as an English language learner that includes a minimum of

four hours per day of English language development.” A.R.S.

§ 15-756.01(C) (2006).

Shortly thereafter, the legislature intervened in the

ongoing litigation to defend its interests, and requested an

evidentiary hearing on a motion for Rule 60(b)(5) relief from

judgment in light of the passage of HB 2064. Horne, 557 U.S.

at 443. The district court denied the Rule 60(b)(5) motion,
FLORES V. HUPPENTHAL 9

finding that HB 2064 was fatally flawed (and inadequate) in

its allocation of ELL funding for three reasons: the increase

in funding “was not rationally related to effective ELL

programming”; the bill imposed an “irrational” two-year limit

on funding for each ELL student; and HB 2064 “violated

federal law by using federal funds to ‘supplant’ rather than

‘supplement’ state funds.” Id. at 443–44.

Our court vacated the district court’s order, and remanded

for an evidentiaryhearing to determine whether Rule 60(b)(5)

relief was warranted. Id. at 444. The district court again

denied the Rule 60(b)(5) motion. We affirmed the order on

appeal because petitioners had not shown “either that there

are no longer incremental costs associated with ELL

programs in Arizona,” or that Arizona’s “educational funding

model was so altered that focusing on ELL-specific

incremental costs funding has become irrelevant and

inequitable.” Flores v. Arizona, 516 F.3d 1140, 1169 (9th Cir.

2008).

The Supreme Court reversed. It observed that the decision

had not addressed the “critical question in this Rule 60(b)(5)

inquiry” of “whether the objective of the District Court’s

2000 declaratory judgment order—i.e., satisfaction of the

EEOA’s ‘appropriate action’ standard—has been achieved.”

Horne, 557 U.S. at 450. Instead, “the Court of Appeals used

a heightened standard that paid insufficient attention to

federalism concerns” by concerning itself “only with

determining whether increased ELL funding complied with

the original declaratory judgment order.” Id. at 451. In other

words, “the Court of Appeals framed a Rule 60(b)(5) inquiry

that was too narrow—one that focused almost exclusively on

the sufficiency of incremental funding,” instead of

“ascertain[ing] whether ongoing enforcement of the original
10 FLORES V. HUPPENTHAL

order was supported by an ongoing violation of federal law

(here, the EEOA).” Id. at 452, 454.

The Supreme Court remanded the case to the district court

with detailed instructions “for a proper examination of at least

four important factual and legal changes that may warrant the

granting of relief from the judgment: the State’s adoption of

a new ELL instructional methodology, Congress’ enactment

of NCLB, structural and management reforms in Nogales,

and increased overall education funding.” Id. at 459. Finally,

the Court noted that “[t]he record contains no factual findings

or evidence that any school district other than Nogales failed

(much less continues to fail) to provide equal educational

opportunities to ELL students,” and questioned whether “the

District Court had jurisdiction to issue a statewide injunction

when it is not apparent that plaintiffs—a class of Nogales

students and their parents—had standing to seek such relief.”

Id. at 470–71. Accordingly, the Court instructed the district

court to “vacate the injunction insofar as it extends beyond

Nogales unless the court concludes that Arizona is violating

the EEOA on a statewide basis.” Id. at 472.

On remand, the Flores Plaintiffs elected not to file a

motion to expand the class. The district court held a threeweek evidentiary hearing on the State Defendants’ Rule

60(b)(5) motion, and allowed the Flores Plaintiffs to present

evidence of a statewide EEOA violation. The Flores Plaintiffs

argued that the State’s “adoption of models requiring that

ELL students be segregated for more than a year in four hours

of daily English language development class . . . is not

‘appropriate action’ under the EEOA” because segregation
FLORES V. HUPPENTHAL 11

prevents ELLstudents from “acquir[ing]the academic credits

necessary to graduate from high school within four years.”2

After examining the four factors the Supreme Court

identified as relevant to deciding the State Defendants’ Rule

60(b)(5) motion, the district court granted the motion with

respect to Nogales because “[e]normous changes have

occurred in the method by which Arizona delivers English

language instruction since judgment was entered in this case

in 2000,” including the advent of NCLB, the development of

the State’s general academic test known as the Arizona

Instrument to Measure Standards (AIMS), and the

implementation of an English proficiency test used to classify

pupils as ELL students. The district court also observed that

“the state has seen the election of a new Governor, a new

Superintendent of Schools, and a new Attorney General,” as

well as numerous changes in the membership of the Arizona

legislature. The district court concluded that the Flores

Plaintiffs’ “evidence from a few school districts” regarding

implementation of the four-hour model was “not sufficient to

establish standing to bring a statewide claim.” In addition,

“Plaintiffs’ newly asserted claims are not ‘statewide’ in

nature, but rather depend on specific implementation choices

made at a district level, thus requiring a district-by-district

analysis.” Accordingly, the district court dismissed the

statewide claims.

The Flores Plaintiffs filed this appeal.

2 The Flores Plaintiffs originally alleged three statewide violations of the

EEOA, including the manner in which ELL students are identified, and

how the students’ English proficiency is tested, but decided only to pursue

the “implementation of the Four Hour Model across the state” on appeal.
12 FLORES V. HUPPENTHAL

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review

for abuse of discretion the district court’s decision granting

the State Defendants’ Rule 60(b)(5) motion for relief from

judgment. United States v. Asarco, Inc., 430 F.3d 972, 978

(9th Cir. 2005). We review the district court’s conclusions on

questions of standing de novo. Ellis v. City of Mesa, 990 F.2d

1518, 1523 (9th Cir. 2003).

DISCUSSION

The Supreme Court in Horne gave the district court

detailed guidance for reviewing the State Defendants’ motion

for relief from judgment on remand. 557 U.S. 433, 447–72

(2009). We conclude that the district court complied with the

Supreme Court’s order, and that relief from judgment was

properly granted.

I.

The Flores Plaintiffs contend that Rule 60(b)(5) relief

from judgment was not warranted because the state law that

mandates public school policies and practices for ELLs

throughout the State of Arizona continues to violate the

EEOA.3 They do not contest the district court’s findings of

fact. Instead, they find it “inexplicabl[e]” that the court

3 The district court expressly “limit[ed] its review of the 60(b)(5) motion

to Nogales” because it found that the “implementation decisions vary from

district to district,” and that “plaintiffs have not established any

‘statewide’ violation.” Accordingly, we also limit our reviewofthe district

court’s ruling on the State Defendants’ Rule 60(b)(5) challenge to

Nogales.
FLORES V. HUPPENTHAL 13

“concluded that the Task Force models, with their four hour

ELD requirement, did not violate the EEOA.” We consider

the Flores Plaintiffs’ arguments in turn.

Rule 60(b)(5) permits a court to relieve a party from final

judgment if “the judgment has been satisfied, released, or

discharged; it is based on an earlier judgment that has been

reversed or vacated; or applying it prospectively is no longer

equitable.” Fed. R. Civ. P. 60(b)(5). A court abuses its

discretion when it refuses to modify an injunction or consent

decree in light of “a significant change either in factual

conditions or in law” that “renders continued enforcement

detrimental to the public interest.” Horne, 557 U.S. at 447

(internal quotation marks and citations omitted). The abuseof-discretion standard is,

highly deferential to the trial court. Under this

standard of review, we cannot simply

substitute our judgment for that of the district

court, but must be left with the definite and

firm conviction that the court committed a

clear error of judgment in reaching its

conclusion after weighing the relevant factors.

United States v. Roston, 986 F.2d 1287, 1291 (9th Cir. 1993)

(internal quotation marks omitted).

The Supreme Court admonished the district court for

failing to engage in the proper analysis when it denied the

State Defendants’ initial Rule 60(b)(5) motion, “ask[ing] only

whether petitioners had satisfied the original declaratory

judgment order through increased incremental funding,”

thereby “disregard[ing] the remand instructions to engage in

a broad and flexible Rule 60(b)(5) analysis as to whether
14 FLORES V. HUPPENTHAL

changed circumstances warranted relief.” Horne, 557 U.S. at

456–57. It also criticized our court for affirming the district

court’s order, and “improperly substitut[ing] its own

educational and budgetary policy judgments for those of the

state and local officials to whom such decisions are properly

entrusted.” Id. at 455. In other words, the “critical question in

this Rule 60(b)(5) inquiry is whether the objective of the

District Court’s 2000 declaratory judgment order—i.e.,

satisfaction of the EEOA’s ‘appropriate action’standard—has

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,

there is very little legislative history” to shed light on “the

scope of the ‘appropriate action’ requirement” in the EEOA.

Guadalupe Org. Inc. v. Tempe Elementary School Dist.,

587 F.2d 1022, 1030 (9th Cir. 1978). “The interpretation of

floor amendments unaccompanied by illuminating debate

should adhere closely to the ordinary meaning of the

amendment’s language.” Id.; see also Castaneda v. Pickard,

648 F.2d 989, 1001 (5th Cir. 1981). The Supreme Court has

instructed that the ordinary meaning of “appropriate action”

requires a State to “(1) formulate a sound English language

instruction educational plan; (2) implement that plan; and

(3) achieve adequate results.” Horne, 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 judgment is therefore warranted, requires attention

to “federalism concerns,” which are “heightened when, as in

these cases, a federal court decree has the effect of dictating

state or local budget priorities.” Id. at 448.

In this case, “the lower courts . . . misperceived both the

nature of the obligation imposed by the EEOA and the
FLORES V. HUPPENTHAL 15

breadth of the inquiry called for under Rule 60(b)(5).” Horne,

557 U.S. at 459. To avoid further confusion, the Supreme

Court gave careful guidance concerning each of the four

factors that could warrant Rule 60(b)(5) relief on remand, and

the district court made numerous factual findings concerning

each of those factors.

1. The State’s Adoption of New ELL Instructional

Methodology

The Supreme Court directed the district court to consider

the State’s adoption of a new ELLinstructional methodology,

which the Court noted appears “significantly more effective

than bilingual education . . . . In light of this, a proper analysis

of petitioners’ Rule 60(b)(5) motion should include further

factual findings regarding whether Nogales’ implementation

of SEI methodology—completed in all of its schools by

2005—constitutes a ‘significantlychanged circumstance’that

warrants relief.” Horne, 557 U.S. at 461.

In response, the district court considered a number of

developments concerning the first factor. It found that in

2000, Arizona voters approved Proposition 203, A.R.S.

§§ 15-751–15-755, which changed the primary method of

ELD in Arizona from a bilingual education model to SEI.

Proposition 203 established a one-year goal for ELLs to

become proficient, and required annual testing and

monitoring of the ELL program. A.R.S. §§ 15-752, 15-755.

The shift from bilingual education to the SEI methodology

required that all ELL students be placed in English language

classrooms and taught only in English. A.R.S. § 15-752.

Proposition 203 initially left the implementation of the

SEI model to the individual school districts, but in 2006, the
16 FLORES V. HUPPENTHAL

Arizona legislature passed HB 2064. A.R.S. §§ 15-756–15-

756.13. HB 2064 established an ELL Task Force charged

with developing a research-based model of ELL instruction

in SEI methodologies, including a minimum of four hours of

daily instruction in ELD for the first year, with the Task

Force to determine the number of hours in each year

thereafter (A.R.S. § 15-756.01); it delegated the duty of

identifying ELLs to the Superintendent of Public Instruction

(A.R.S. § 15-756); it required that the models be researchbased, with consideration paid to the size, location, grade

levels, and number of ELLs at the school (A.R.S. § 15-

756.01); it required all school districts to adopt the Task

Force’s model, or submit an alternative model for approval

(A.R.S. § 15-756.02(B)); it mandated a uniform method of

assessing and reclassifying ELL students, and for monitoring

reclassified students two years after exiting the program

(A.R.S. § 15-756.06); it required at least annual testing of

ELLs to determine whether they should be re-classified as

“English proficient” (A.R.S. § 15-756.05(A), (B)); it created

the Office of English Language Acquisition Services, which

was to monitor the school districts’ implementation of and

compliance with the models (A.R.S. § 15-756.07); and it

required the Task Force to refine the models yearly, as

necessary (A.R.S. § 15-756.01).

The Task Force met thirty-one times between September

2006 and September 2007, accepted drafts of proposed

models, consulted experts, and held public hearings before

choosing a model. The Task Force model groups students by

proficiency, and for four hours each day, requires content that

“emphasizes the English language itself” rather than “other

types of instruction, e.g. math, science, or social science.”

However, “[a]cademic content can be used as a vehicle for

delivering ELD . . . .” As the district court observed, “[t]he
FLORES V. HUPPENTHAL 17

extent to which ELL students in the four hours of ELD are

exposed to academic content can vary from school district to

school district and from school to school within a school

district” because “[t]he state does not prescribe the kind of

academic content that should be used as a vehicle for

delivering English Language Development at various grade

levels and the teachers have the flexibility to use the materials

that they want.”

2. Congress’s Enactment of No Child Left Behind

The Supreme Court also instructed the district court to

consider whether the enactment of NCLB “constitute[s] a

significantly changed circumstance, warranting relief.”

Horne, 557 U.S. at 465. It noted that the “original declaratory

judgment order,” which “withdr[e]w[] the authority of state

and local officials to fund and implement ELL programs that

best suit Nogales’ needs . . . conflict[s] with Congress’

determination of federal policy.” Id. The Court found the

enactment of NCLB “probative in four principal ways”: (1)

it prompted the State to institute significant structural and

programming changes in its delivery of ELL education; (2) it

significantly increased federal funding for education in

general and ELL programming in particular; (3) through its

assessment and reporting requirements, it provides evidence

of the progress and achievement of Nogales’ ELL students;

and (4) it makes a shift in federal education policy. Id. at

463–64.

The district court undertook its analysis of this factor as

directed by the Supreme Court. It concluded that NCLB “has

made four major changes to the delivery of ELD in Nogales

and throughout Arizona: (A) the development of the ELP

[English Language Performance standards], (B) the adoption
18 FLORES V. HUPPENTHAL

of Annual Measurable Achievement Objectives (“AMAOs”),

(C) accountability for failure to achieve AMAOs, and

(D) increased funding.” The district court noted that, “In

2009, Nogales met its Annual Yearly Progress (AYP)

requirements as required by NCLB by reclassifying more

than 15% of its ELL students.” In addition, NCLB “devises

an elaborate accountability structure for a district’s failure to

achieve AMAOs, including the requirement of corrective

action, NCLB § 1116(b)(7), and sanctions starting at

decreased funding and culminating in a takeover of failing

schools. NCLB § 1116(b)(8).”

3. Structural and Management Reforms in Nogales

As to the third change—structural and management

reforms in Nogales—the Supreme Court made clear that it

was “error” for “both courts [to] refuse[] to consider that

Nogales could be taking ‘appropriate action’ to address

language barriers even without having satisfied the original

order” through, for example, Nogales superintendent “[Kelt]

Cooper’s structural, curricular, and accountability-based

reforms.” Horne, 557 U.S. at 466–67. Accordingly, the

district court found that “[b]eginning with Superintendent

Cooper and continuing with Superintendent McCollough,

Nogales has implemented substantial structural and

management reforms that have significantly elevated its

performance.”Nogales’teacher salaries are now “competitive

within Arizona, and very competitive within its region,” and

it is “no longer the case” that Nogales has “inadequate

teaching materials for both content and ESL classes.”

Nogales “created a centralized textbook adoption program,

which addressed the Court’s concerns regarding the adequacy

of teaching materials,” and “established various
FLORES V. HUPPENTHAL 19

compensatory education programs including summer school

and after-school tutoring.”

4. Increased Overall Education Funding

Finally, the district court turned to the issue of funding,

the factor that lay at the heart of its earlier orders holding

Arizona in violation of the EEOA. The Supreme Court noted

that the “five sources of funding that collectively financed

education in the State” at the time the original declaratory

judgment was entered “have notably increased since 2000,”

and constitute “[a] fourth potentially important change . . . in

Nogales.” Horne, 557 U.S. at 468. On remand, the district

court acknowledged the “several income streams” by which

Arizona funds local education, and carefully examined the

funding changes statewide, and in Nogales. Statewide

equalization funding (intended to make sure all districts are

on a level playing field) increased from $3.413 billion in

2000 to $5.776 billion in 2010. As a result of NCLB,

Arizona’s share of Title I funding increased from

$359,247,997 in 2000 to $582,931,537 in 2010. The 2009

American Recovery and Reinvestment Act “sent about one

and a half billion dollars in FY 2010 for education purposes”

“[f]or Arizona alone.” In 2000, Nogales voters approved a

budget override, “and the funds it has generated have

increased from $895,891 in FY 2001 to $1,750,825 in FY

2010.” Funding per pupil in Nogales increased by 44% over

the past decade, from $3,675 in 2000 to $5,306 in 2010. The

court concluded that “Nogales has an effective ELD program.

Its FEP-2s [students who have reclassified as proficient for

two years] rank higher on AIMs reading, writing, and

mathematics at all elementary and middle grades,” and “[i]ts

reclassification rates consistently have placed at the top or

near the top of nine sister districts at the border.”
20 FLORES V. HUPPENTHAL

We conclude that the district court carefully followed the

Supreme Court’s instructions on remand, and did not abuse

its discretion in determining that in light of the changed

circumstances in Nogales and in the State over the course of

more than a decade, Rule 60(b)(5) relief was warranted.

II.

We turn now to the question of whether the Flores

Plaintiffs have alleged a statewide violation of the EEOA.

Our conclusion that Rule 60(b)(5) relief was properly granted

because the State Defendants’ ELL programs in Nogales

constitute “appropriate action” under the EEOA prefigures

our conclusion that Arizona is not violating the EEOA on a

statewide basis. As the State Defendants observe, the

expansion of the injunction statewide “was made solely as a

means (disagreed with by the Supreme Court) of affording

effective relief in [Nogales]. Thus, with [Nogales]’s

shortcomings having been fixed, and with it now conducting

an effective ELD program, the rationale for granting

statewide relief collapses.” Nevertheless, because the

Supreme Court instructed the district court, if “press[ed],” to

determine whether “Arizona is violating the EEOA on a

statewide basis,” we proceed with an analysis of the Flores

Plaintiffs’ statewide claims on appeal.

We note initially that the Flores Plaintiffs represent only

a class of Nogales students and their parents. The class was

never certified to extend statewide, and the Flores Plaintiffs

declined to seek an expansion of the class. It appears that the

district court undertook no standing analysis when it extended

its injunction to apply statewide. In its discussion of the

district court’s entry of statewide relief, the Supreme Court

observed that
FLORES V. HUPPENTHAL 21

[t]he record contains no factual findings or

evidence that any school district other than

Nogales failed (much less continues to fail) to

provide equal educational opportunities to

ELL students. . . . Nor have respondents

explained how the EEOA could justify a

statewide injunction when the only violation

claimed or proven was limited to a single

school district. See [Missouri v.] Jenkins,

515 U.S.[ 70,] 89–90 [(1995)], 115 S. Ct.

2038; Milliken [v. Bradley], 433 U.S.[ 267,]

280 [(1977)], 97 S. Ct. 2749. It is not even

clear that the District Court had jurisdiction to

issue a statewide injunction when it is not

apparent that plaintiffs—a class of Nogales

students and their parents—had standing to

seek such relief.

Horne, 557 U.S. at 470–71. Accordingly, “[a]ssuming that

petitioners, on remand, press their objection to the statewide

extension of the remedy, the District Court should vacate the

injunction insofar as it extends beyond Nogales unless the

court concludes that Arizona is violating the EEOA on a

statewide basis.” Id. at 472.

On remand, the district court permitted the Flores

Plaintiffs to present evidence of a statewide violation of the

EEOA that would justify the continued enforcement of the

statewide remedy. The district court concluded that,

“Plaintiffs’ newly asserted claims are not ‘statewide’ in

nature, but rather depend on specific implementation choices

made at the district level.” We hold that the district court

properly dismissed the Flores Plaintiffs’s statewide claims

because the Flores Plaintiffs are not attacking the validity of
22 FLORES V. HUPPENTHAL

a statewide policy; rather, they are challenging local

implementation after the first year of the four-hour English

language requirement, and its alleged negative effects on ELL

students, some of whom may receive less academic content

than their English-speaking peers.4

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

. . . remedy is to be determined by the nature and scope of the

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

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

an intradistrict violation is an intradistrict remedy . . . .”

Jenkins, 515 U.S. at 90. “[O]nly if there has been a

systemwide impact may there be a systemwide remedy,”

Lewis v. Casey, 518 U.S. 343, 359–60 (1996) (quoting

Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (alteration in

original)). In other words, in order to seek statewide relief on

behalf of all ELL students in Arizona, the Flores Plaintiffs

must demonstrate “widespread actual injury,” not just

“isolated instances of actual injury,” as a result of Arizona’s

alleged violation of the EEOA. See Lewis, 518 U.S. at 349.

This requirement “derives ultimately from the doctrine of

standing, a constitutional principle that prevents courts of law

from undertaking tasks assigned to the political branches.” Id.

at 349. Article IIIstanding requires, (1) that the plaintiff have

suffered a concrete and particularized “injury in fact,” which

is neither speculative nor conjectural; (2) that there be a

causal connection between the injury alleged and the

4 The Flores Plaintiffs are not making a separate claim that the model’s

segregation of ELL students violates the Fourteenth Amendment. In fact,

the Flores Plaintiffs disclaim this theory. Instead, they argue that

segregating students after the first year violates the EEOA because it

denies them access to the same academic content as their non-ELL peers.

This claim is therefore an alternative argument for why Arizona’s fourhour ELD model violates the EEOA.
FLORES V. HUPPENTHAL 23

challenged conduct; and (3) that it “be ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Lujan v. Defenders of Wildlife, 504 U.S.

555, 560–61 (1992). And when plaintiffs seek a systemwide

injunction for widespread wrongs, theymust demonstrate that

the expansive scope of the injunction sought is no broader

than necessary to remedy the “inadequacy that produced the

injury in fact that the plaintiff has established.” Casey,

518 U.S. at 357. This is because

standing is not dispensed in gross. If the right

to complain of one administrative deficiency

automatically conferred the right to complain

of all administrative deficiencies, any citizen

aggrieved in one respect could bring the

whole structure of state administration before

the courts for review. That is of course not the

law.

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

The Flores 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.” However, the possible effects of a

speculative, future court-ordered remedy are insufficient to

confer standing on the Flores Plaintiffs to bring their

statewide claim in the first instance. See Am. Civil Liberties

Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006)

(“When evaluating whether these three elements are present,

we must look at the facts as they exist at the time the

complaint was filed.”) (internal quotation marks omitted)

(emphasis in original). The Flores Plaintiffs have not

established “widespread actual injury” as a result of
24 FLORES V. HUPPENTHAL

Arizona’s alleged violation of the EEOA, Lewis, 518 U.S. at

349, and therefore, have not “explained how the EEOA could

justify a statewide injunction,” Horne, 557 U.S. at 470.

The Flores Plaintiffs appear to be challenging the fourhour model as facially violating the EEOA because Arizona

does not require districts “to provide ELL students with an

opportunity to recover missed academic content.” In reality,

they are attacking the implementation of the four-hour model,

and its alleged negative effects on ELL students. Indeed, the

Flores Plaintiffs admit that they are not challenging the model

as applied to all ELL students: “Plaintiffs believe that the

models should be given a chance to work for first year

English language learners as the Legislature prescribed.”

Instead it is the “[c]ontinued placement of elementary and

high school students in the four hour model after the first year

[that] constitutes a failure to take ‘appropriate action’ . . . .”

The Flores Plaintiffs’ chief complaint is that the four-hour

model is defective (i.e., does not constitute “appropriate

action” under the EEOA) because “[t]he state does not

require school districts to provide ELL 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 whether ELL students have been deprived of

academic content as a result of being placed in four hours of

ELD.” But the EEOA imposes no such requirement on the

school districts; it requires only that a State “‘take appropriate

action to overcome language barriers’ without specifying

particular actions that a State must take. . . . Congress

intended to leave state and local educational authorities a

substantial amount of latitude in choosing the programs and

techniques they would use to meet their obligations under the

EEOA.” Horne, 557 U.S. at 440–41 (quoting Castaneda v.
FLORES V. HUPPENTHAL 25

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

587 F.2d at 1030.

The record is replete with evidence that underscores the

extent to which implementation of this model—and more

specifically, the academic content that ELL students

receive—varies from district to district. For example,

Humboldt Unified School District incorporates academic

standards promulgated by the State into its ELL curriculum,

and delivers content-based instruction that conforms to those

standards. It also provides before-and-after-school programs,

as well as summer school classes, to deliver academic content

to ELL students.5 Amphitheater High School in the

Amphitheater Public School District works with ELL

students to place them in mainstream core classes, like math,

at the same time that they are learning English in four-hour

blocks. This district-by-district implementation of a general,

State-mandated educational framework is consistent with the

requirements of the EEOA. Such local variation makes it

impossible for the Flores Plaintiffs to establish a widespread,

homogeneous injury sufficient to justify statewide injunctive

relief.

The Flores Plaintiffs also contend that “segregation” of

ELL students beyond the first year violates the EEOA

because, by definition, it is not necessary to achieve

5 As the Flores Plaintiffs note, HB 2064 limits “‘compensatory

instruction’ outside the regular school day . . . to English language

instruction and does not include providing instruction to ELL students in

academic content areas that they may have missed as a result of

participating in the Task Force models.” However, this does not change

the fact that, as with the standard four hours of ELD instruction during the

school day, the amount of core academic content disseminated during

compensatory instruction varies by school district.
26 FLORES V. HUPPENTHAL

Arizona’s stated academic goal of proficiency within one

year. They frame the injury that stems from this alleged

violation as a denial of ELL students’ educational

opportunities. The argument is therefore duplicative of their

contention that the four-hour English language requirement

violates the EEOA because it results in ELL students

receiving less academic content than their English-speaking

peers. This injury cannot provide a basis for a statewide

remedy because the four-hour model is implemented

differently across the State. For example, the model explicitly

allows ELL students who have achieved an “intermediate”

level of English proficiency and have passed certain tests to

be excused from up to two hours per day of ELD instruction.

A.R.S. § 15-752(A) permits schools and districts to request

approval of an alternative model, which in the case of

Glendale Union High School has resulted in a program that

allows juniors and seniors who are on track to graduate and

who meet certain other requirements to be exempted from

one to two hours of ELD instruction.

The Flores Plaintiffs are not arguing that four hours of

ELD instruction violates the EEOA per se, but rather that the

State is violating the EEOA through proficiency grouping

after the first year, and by not also requiring districts “to

provide ELL students with an opportunity to recover missed

academic content.” These are not statewide claims; instead,

they contemplate alleged injuries that result from the

implementation of the four-hour model, which varies from

district to district, and cannot form the basis of claims for

statewide injunctive relief.
FLORES V. HUPPENTHAL 27

CONCLUSION

The Supreme Court gave clear instructions to the district

court on remand. We conclude that the district court carefully

followed those instructions. It was not an abuse of discretion

to grant the State Defendants’ Rule 60(b)(5) motion because

changed circumstances warrant granting the State Defendants

relief from judgment. Likewise, the Flores Plaintiffs have not

alleged a statewide violation of the EEOA that is adequate to

justify the continued enforcement of a statewide injunction.

The pending motions are denied as moot. Each party shall

bear its own costs on appeal.

AFFIRMED.

FRIEDLAND, Circuit Judge, concurring in Parts I.1–I.4 of

the majority opinion, and concurring in the judgment:

I agree with the majority that the district court obeyed the

Supreme Court’s directives regarding how the remand in this

case should proceed, and that the district court did not abuse

its discretion in, accordingly, granting Rule 60(b)(5) relief to

Defendants. I nevertheless write 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 its face, the four-hour English Language

Development (“ELD”) model adopted by the state Task Force

violates the Equal Educational Opportunities Act (“EEOA”)

because it requires “segregation” of English Language

Learners (“ELLs”) for four hours per day even after their first
28 FLORES V. HUPPENTHAL

year of ELD instruction. I also understand Plaintiffs to be

arguing that, even if the original statewide injunction is no

longer justified, an injunction should remain in place in

Nogales because Nogales’s implementation of the four-hour

ELD model results in loss of academic content and

unnecessary segregation for ELLs and thus violates the

EEOA.

In response to those arguments, I would hold that

although Plaintiffs have standing to bring a facial challenge

to the four-hour ELD model adopted by the Task Force for

use statewide, their challenge fails on the merits. Further, I

would hold that Plaintiffs have not shown that their new

objections to the four-hour model’s implementation in

Nogales constitute EEOA violations that require maintaining

an injunction in this case.

I.

Plaintiffs argue that the “four hour ELD requirement

beyond the first year violates the EEOA because the degree

of segregation required by the State is not necessary to

achieve the State’s academic goal of proficiency in one year.” 

I understand this to be a facial challenge to the statewide

imposition of the four-hour ELD model.

In my view, Plaintiffs have standing to bring such a facial

challenge. Plaintiffs have described a concrete and

particularized “injury in fact” because they are subject to the

four-hour model, and thus to its requirement that they learn

English in a separate classroom. Lujan v. Defenders of

Wildlife, 504 U.S. 555, 560 (1992). That injury is caused by

the four-hour model, and it is likely that changing the model

would lead Nogales to change its ELD program, so the
FLORES V. HUPPENTHAL 29

causation and redressability requirements for standing are

also met. See id. at 560–61. That Plaintiffs are all from

Nogales does not prevent them from having standing to

facially challenge what is effectively a state law, because the

statewide requirement impacts them personally. See Ariz.

Libertarian Party, Inc. v. Bayless, 351 F.3d 1277, 1280–81

(9th Cir. 2003) (per curiam) (holding that the plaintiffs had

standing to challenge a statewide rule governing primary

elections, even though primary elections were administered

at the county level); Burdick v. Takushi, 937 F.2d 415,

417–18 (9th Cir. 1991) (holding that the plaintiff had standing

to challenge a statewide prohibition on write-in voting that

affected him personally, even though an “order striking down

the prohibition may apply to races in which [he could not]

vote”).

On the merits, however, this facial challenge fails. It is

not impermissible segregation to group students by language

ability as long as there is a legitimate educational reason for

doing so. See Castaneda v. Pickard, 648 F.2d 989, 998, 1009

(5th Cir. Unit A June 1981). We owe deference to state

educational experts’ opinions, including the Task Force

members’ determination here that students learn English best

when taught in a separate classroom. See Horne v. Flores,

557 U.S. 433, 468 (2009) (“The EEOA’s ‘appropriate action’

requirement grants States broad latitude to design, fund, and

implement ELL programs that suit local needs and account

for local conditions.”); Castaneda, 648 F.2d at 998, 1009

(recognizing that school districts have discretion to decide

whether language ability grouping is appropriate); cf. LaVine

v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001)

(recognizing the “substantial deference” owed to educators in

the First Amendment context because “[t]he daily

administration of public education is committed to school
30 FLORES V. HUPPENTHAL

officials”). It was not unreasonable for the Task Force to

conclude that separating students by language proficiency for

up to four hours each day would enable ELLs to develop their

English language skills most quickly. Indeed, Plaintiffs do

not even dispute this general principle. As the majority

observes, Plaintiffs admit that they are not challenging the

four-hour model as applied to first-year ELLs. Plaintiffs

offer no support for their proposed distinction between the

first and subsequent years of ELD—either in terms of why

studying in a separate classroom becomes less helpful for

language acquisition after the first year or in terms of why

this separation becomes more harmful. Their facial challenge

to the statewide requirement that ELLs receive English

instruction in a separate classroom after the first year is

therefore unavailing.

II.

I understand Plaintiffs to be making the additional

argument that Nogales’s implementation of the four-hour

model violates the EEOA by providing insufficient access to

academic content for ELLs and by separating ELLs from

their mainstream peers more than is necessary to teach them

English. These arguments differ from Plaintiffs’ original

claim in this lawsuit (that Nogales’s inadequate funding of

ELD violated the EEOA), and Plaintiffs’ new arguments are

not clearly addressed by the four considerations that the

Supreme Court articulated in response to the original fundingbased claim.1 Horne, 557 U.S. at 459. As students from

1 Although these claims were not part of Plaintiffs’ original lawsuit, and

although Plaintiffs presented these arguments in the district court

primarily as statewide challenges to the four-hour ELD model, the district

court explicitly reached these arguments, construing them as challenges
FLORES V. HUPPENTHAL 31

Nogales, there is no question that Plaintiffs have standing to

make these arguments. On the current record, however, the

challenges to the implementation of the four-hour model in

Nogales fail on the merits.

With regard to ELLs’ access to academic content in

Nogales, the district court found that “Nogales has an

effective ELD program.” Based on the performance of

former ELLs in Nogales, this factual finding was not clearly

erroneous. Former ELLs who have been classified as

English-proficient for at least two years (“FEP-2s”) met or

exceeded state and district averages on AIMS tests in almost

all subject-grade combinations in 2006–2009—all of the

years for which AIMS data are available in the record.

The district court also appropriately found that Nogales

provides substantial support for ELLs and former ELLs to

compensate for any diminished exposure to academic content

resulting from ELD. For example, Nogales offers summer

school and after-school tutoring. These programs cover

academic subject areas beyond English, including support for

science and math. The fact that FEP-2s in Nogales had a high

school graduation rate over 90% each year between 2006 and

2010 also supports the conclusion that ELLs are eventually

exposed to necessary academic content.

With regard to their segregation allegations, Plaintiffs

argue that, pursuant to guidance provided by the Department

of Education’s Office for Civil Rights (“OCR”), Nogales’s

to Nogales’s implementation of the Task Force model. Defendants have

not argued that Plaintiffs waived these Nogales-specific arguments by not

presenting them more distinctly below, or by not raising them earlier in

the litigation.
32 FLORES V. HUPPENTHAL

implementation of the four-hour model violates the EEOA

because it is not “the least segregative manner” of ELD. 

“Dear Colleague” Letter from U.S. Dep’t of Justice, Civil

Rights Div., and U.S. Dep’t of Educ., Office for Civil Rights

22 (Jan. 7, 2015), available at http://www2.ed.gov/about/

offices/list/ocr/letters/colleague-el-201501.pdf. The OCR

letter interprets the EEOA as requiring schools to “avoid

unnecessary segregation of” ELLs, and opines that a program

that separated ELL from non-ELL students “in subjects like

physical education, art, and music” or “during activityperiods

outside of classroom instruction” probably would violate this

requirement. Id. Assuming that the OCR letter correctly

interprets the EEOA, Plaintiffs have not put forward evidence

showing that implementation of the four-hour model in

Nogales results in language-ability-based grouping for more

than the ELD portion of the day. To the contrary, Defendants

have presented evidence that ELLs in Nogales participate in

extracurricular activities alongside non-ELLs, and that former

ELLs have access to the full academic curriculum.

* * *

The record does not contain enough years of ELL

performance data after the implementation of the four-hour

model to be certain of the model’s effectiveness at teaching

English or of its long-term impact on overall academic

success. The district court appropriatelyconcluded, however,

that, based on the evidence that does exist, Plaintiffs could

not show their new challenges to the implementation of the

four-hour model in Nogales require maintaining an

injunction.

If evidence of an EEOA violation emerges in the future,

a new lawsuit could of course be brought. But the district
FLORES V. HUPPENTHAL 33

court here correctly concluded that the current lawsuit “is no

longer the vehicle to pursue the myriad of educational issues”

about which Plaintiffs are concerned. The district court

appropriately concluded that the injunction imposed in this

lawsuit is no longer justified by Plaintiffs’ original claims,

and that their new claims fare no better. The district court

therefore did not err in vacating the injunction.