ROBERT SIEGEL, host:
Today the U.S. Supreme Court heard arguments in a case that could limit the power of the federal courts to enforce a federal education law. The law is the 1974 Equal Educational Opportunities Act. And it requires that all states take the steps needed to eradicate language barriers for non-English speaking public school students.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: Today's case began in Nogales, Arizona, along the border with Mexico, where many, if not, most of the children speak Spanish at home. So unless they learn English at school, they almost inevitably fall behind. Miriam Flores, now in college, remembers how hard it was to keep up even in math.
Ms. MIRIAM FLORES: I mean, problem solving, they were all in English. So, you know, in order to understand, I kind of say, yeah, you need to be proficient in your reading in English.
TOTENBERG: The same was true in social studies, science, all the basics. Miriam's mother and other parents in Nogales saw their children drowning. And so they sued the state of Arizona for failing to live up to the federal law that requires the teaching of English proficiency.
In 2000, a federal judge ruled that the state had failed to put in place trained teachers and programs reasonably calculated to teach English. Since then the state says it's made significant progress. And some state office holders have gone to court seeking to dissolve the court order. The lower courts, however, have ruled that the schools are still nowhere near compliance with federal law.
Today in the Supreme Court, lawyer Kenneth Starr, representing the Arizona House speaker and Senate president, argued that the judge in charge of the case did not adequately consider the sea change that's taken place in recent years. Under new leadership, said lawyer Starr, the Nogales school district, quote, was doing great. Justice Breyer leaning forward, doing great? In 2008, 77 percent of the English learners in Nogales failed the tests, as compared to 32 percent statewide. Now I'm sure progress has been made, but it doesn't seem to me that you could say the objectives are achieved.
Lawyer Starr contended that the state has done what it has to under the law, make a good faith effort at compliance. Justice Souter suggested that a good deal more than good faith is needed.
Lawyer Starr swerved, noting this time that the problem was that the case, which had originally been limited to Nogales, had spread to the rest of the state. Justice Ginsburg, yes, but that's because the state attorney general said the state constitution requires any English-learner funding to apply not just to students in Nogales, but also to students with similar problems elsewhere in the state, too.
Starr conceded that state officials have been divided on this litigation. Justice Scalia, that's water over the dam now. That's not what this case is about. Justice Kennedy, well, is the court order valid in Nogales? Answer, no, because circumstances have changed and the court order in intrusive.
Justice Souter, I thought what the judge said here was, you, Nogales, have come up with plan A. You have come up with funding B. Funding B, though, is not enough money to fund plan A. That's not saying that the federal statute requires a particular level of funding. It's simply saying, if you choose plan A, you've got to pay for plan A.
When lawyers for the other side stood to argue, they got funding questions in reverse, particularly from the court's two Bush appointees, Chief Justice Roberts and Justice Alito. Roberts asked why a state shouldn't be able to change a plan, either because of a budgetary crisis or because the old plan isn't working. What's wrong with that? Nothing, replied lawyer Sri Srinivasan. The judge did that, but he found that the progress made hadn't reached the high school, was fleeting and it was premature to dissolve the court order because compliance had not been achieved. He didn't tell the school district what to do. He had no interest in micromanaging the schools. He just said they were still in violation of the law.
Chief Justice Roberts, can the judge say, you've got to spend this much money on this program, and I don't care what it means for jails, roads, anything else, when there are profound changes in economic circumstances of the sort that everybody's experiencing lately? Answer: no. The state would have to present those factors as justifying a lesser program, and it has not done that so far.
At points today, the justices seemed divided, yes, but also frustrated that Arizona politicians seem almost deliberately to have made such a hash of this case. Now the only question is whether the justices are ready to put on their cowboy hats and come riding to the rescue.
Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
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