Nos. 08-289, 08-294

In the

Supreme Court of the United States

THOMAS C. HORNE, SUPERINTENDENT,
ARIZONA PUBLIC INSTRUCTION
Petitioners

v.
MIRIAM FLORES, ET AL. ,
Respondents

SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES, ET AL.,
Petitioners

v.
MIRIAM FLORES, ET AL. ,
Respondents

On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Brief of the American Unity Legal Defense
Fund, English Language Political Action
Committee, ProEnglish and the Center for
Equal Opportunity, As Amici Curiae
Supporting Petitioners

BARNABY W. ZALL
Counsel of Record for Amici Curiae
Weinberg & Jacobs, LLP
11300 Rockville Pike, #1200
Rockville, MD 20852
(301) 231-6943

Questions Presented

1. Whether a federal-court injunction seeking to
compel institutional reform should be modified in the
public interest when the original judgment could not
have been issued on the state of facts and law that
now exist, even if the named defendants support the
injunction.
2. Whether compliance with the No Child Left
Behind Act’s extensive requirements for Englishlanguage
instruction is sufficient to satisfy the Equal
Educational Opportunities Act’s mandate that States
take “appropriate action” to overcome language
barriers impeding students’ access to equal
educational opportunities.

i
Table of Contents
Table of Authorities ................................................... iii
Interest of Amici Curiae ..............................................1
Preliminary Statement .................................................2
A. “Bilingual Education:” Teaching English
Language Learners in Their Native Languages... 3
B. Bilingual Education Was Preferred by Federal
Policies, But Proved Largely Ineffective ..............4
C. Some Schools Introduced New “English
Immersion” Teaching Methods.............................7
D. Structured English Immersion Proved More
Successful Than Bilingual Education................. 10
E. Parents and Educators Began Rejecting
Bilingual Education Programs and Advocating for
English Immersion Programs ............................. 12
F. Federal Policy Preferences Changed to Favor
English Language Acquisition ............................ 15
Summary of Argument ...............................................17
Argument ....................................................................19
I. The Decision Below Distorts And
Misapplies The Castaneda Test ................... 19
A. The Equal Educational Opportunities Act .... 19
ii
B. The Fifth Circuit Crafted a Three-Part
Castaneda Test to Evaluate EEOA Claims ........ 22
C. The Decision Below Distorts and Misapplies
the Castaneda Test.............................................. 26
II. The Decision Below Distorts And
Misapplies The Relationship Between The
EEOA And The NCLB ..................................... 35
A. The Goals of the EEOA and Title III of the
NCLB Are The Same........................................... 35
B. Title III Is An Individually-Focused Civil
Rights Law........................................................... 36
C. The Ninth Circuit’s Approach Could Harm,
Not Help, Children .............................................. 38
Conclusion ..................................................................39

iii
Table of Authorities

Cases:

Calif. Teachers Ass’n v. State Bd. Of Ed., 271 F.3d
1141 (9th Cir. 2001)........................................ 13, 29
Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981)
.................................................................. passim
Castaneda by Castaneda v. Pickard, 680 F.2d 456 (5th
Cir. 1986)............................................................... 30
Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008)..........
.................................................................. passim
Gomez v. Illinois State Bd. Of Education, 811 F.2d
1030 (7th Cir. 1987)........................................ 26, 30
Guadalupe Organization, Inc. v. Tempe Elementary
School Dist. No. 3, 587 F.2d 1022 (9th Cir 1978)....
....................................................................21, 22
Idaho Migrant Council v. Bd. Of Educ., 647 F.2d 69
(9th Circ. 1981) ..................................................... 37
Keyes v. School District No. 1, 521 F.2d 465 (10th Cir.
1975), cert. denied, 423 U.S. 1066 (1976) ............ 20
Lau v. Nichols, 414 U.S. 563 (1974) .................... 3, 4, 5
Serna v. Portales Municipal Schools, 351 F.Supp.
1279 (D.N.M.1972)................................................ 20
iv
Serna v. Portales Municipal Schools, 499 F.2d 1147
(10th Cir. 1974)..................................................... 20
Sorenson v. Secretary of Treasury of U.S., 475 U.S.
851 (1986).............................................................. 30
United States v. Texas, 342 F.Supp. 24 (E.D.Tex.
1971), aff’d, 466 F.2d 518 (5th Cir. 1972)............ 21
United States v. Texas, 680 F.2d 356 (5th Cir. 1982)
..........................................................................26
United States v. Texas Education Agency, 532 F.2d
380 (5th Cir.), vacated sub nom. Austin
Independent School District v. United States, 429
U.S. 990 (1976) ..................................................... 21
Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002).... 2, 13
Valeria G. v. Wilson, 12 F.Supp.2d 1007 (N.D. Cal.
1998)........................................................................2
Statutes:
Bilingual Education Act of 1974, 20 U.S.C. § 880b et
seq. (1976) ...............................................................4
Equal Educational Opportunities Act of 1974, 20
U.S.C. § 1703(f)............................................. passim
Title III of the No Child Left Behind Act, 20 U.S.C. §
6812, et seq. ................................................... passim
20 U.S.C. § 3401 et seq .............................................. 15
20 U.S.C. § 6812(1)............................................... 16, 31
v
A.R.S. § 15-751.1 .........................................................4
A.R.S. § 15-751.5 ........................................................ 10
A.R.S. § 15-752 ............................................................9
A.R.S. § 15-753 ............................................................9
147 Cong. Rec. S13328 (Dec. 17, 2001) .............. 15, 38

Miscellaneous:

Accountability Division, Research and Evaluation
Section, Arizona Dept. of Education, “State
Report Cards,” Dec. 29, 2008, available at:
www.ade.az.gov/srcs/statereportcards ........... 31, 32

Arizona Dept. of Education, The Effects of Bilingual
Education Programs and Structured English
Immersion Programs on Student Achievement: a
Large-Scale Comparison, July 2004, available at:
http://epsl.asu.edu/epru/articles/EPRU-0408-66-
OWI.pdf ........................................................ 4, 9, 10

Keith Baker, et al., Effectiveness of Bilingual
Education: A Review of the Literature, U.S. Dept.
of Education, 1981, available at:
http://www.eric.ed.gov/ERICDocs/data/ericdocs2sq
l/content_storage_01/0000019b/80/32/b7/39.pdf
........................................................................6, 8

Paul Berman, et al., Meeting the Challenge of
Language Diversity: An Evaluation of Programs
for Pupils of Limited Proficiency in English, BW
Associates, Berkeley, California, 1992 ...................6

vi

Commission on Behavioral and Social Sciences and
Education, National Research Council, Institutes
of Medicine Educating Language Minority
Children, National Academy Press, Washington,
D.C., 1998, available at
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/15/93/9d.pdf.............7

Comm. On Ed. & the Work Force, “No Child Left
Behind Act of 2001,” H.R. Rep. 107-63, Pt. 1..........
....................................................................12, 38

Commonwealth of Massachusetts Board of Education,
Report No. 5 to the United States District Court,
District of Massachusetts on Boston School
Desegregation, Vol. 2, July 15, 1985 ......................6

Conf.Rep. No. 93-1026, 93d Cong., 2nd Sess. (1974),
reprinted in (1974) U.S.Code Cong. & Ad.News
4093 .........................................................................5

Elections Division, State of Massachusetts,
“Massachusetts 2002 Election Ballot Question
Results,” available at:
www.sec.state.ma.us/ele/eleres/questions.htm .... 14

English for the Children of Massachusetts, Ballot
Initiative Campaign Launched to Dismantle
Bilingual Education in Massachusetts, July 31,
2001, available at:
www.onenation.org/0107/pr073101.htm ............. 14

vii

Russell Gersten, et al., Bilingual Immersion: A
Longitudinal Study, READ Institute, Washington,
D.C. 1992, available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/29/b2/e6.pdf ........... 10

Daniel Gonzalez, “Arizona Win Encourages Bilingual
Ed Opponents,” Arizona Republic, Nov. 20, 2000,
A-1, available at:
http://www.onenation.org/0011/112000a.htm .....13

Joanne Jacobs, The Education of J*A*I*M*E
C*A*P*E*L*L*A*N: English Learner Success in
California Schools. Lexington Institute.
Arlington, VA, 2008, available at:
http://lexingtoninstitute.org/docs/Joanne%20Jacob
s%20Paper%20-%20June%202008.pdf .......... 11, 12

Massachusetts Bilingual Education Commission,
Striving for Success: The Education of Bilingual
Pupils: A Report of the Bilingual Education
Commission. Boston, 1994. ...................................7

Rita Montero, “A Tale of Two Tongues,” Denver Post,
May 25, 1997, available at:
www.onenation.org/1997/052597.html ................ 12

New York City Board of Education, Educational
Progress of Students in Bilingual and ESL
Programs: a Longitudinal Study, 1990-1994,
available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/13/9a/d1.pdf........... 10

viii

PBS Online Newshour, “Double Talk,” Newshour
Transcript, Sept. 21, 1997, available at
www.pbs.org/newshour/bb/education/julydec97/
bilingual_9-21.html .................................... 13
Rosalie Pedalino Porter, FORKED TONGUE: THE

POLITICS OF BILINGUAL EDUCATION, 2nd ed. (1996)
...........................................................................3

Christine Rossell, et al., Bilingual Education in
Massachusetts: The Emperor Has No Clothes,
Pioneer Institute, Boston, Massachusetts, 1996,
available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/15/3d/04.pdf......... 7, 9

Kelly Torrance, Immersion Not Submersion: Lessons
from Three California Districts’ Switch From
Bilingual Education to Structured Immersion,
Vol. II. Lexington Institute, Arlington, VA, 2006,
available at:
http://lexingtoninstitute.org/docs/707.pdf ...........11

U.S. Dept. of Education, “Title III--Language
Instruction For Limited English Proficient And
Immigrant Students Language Instruction for
Limited English Proficient and Immigrant
Students (III),” No Child Left Behind: A Desktop
Reference, available at:
www.ed.gov/admins/lead/account/nclbreference/pa
ge_pg30.html................................................... 16, 36

1

INTEREST OF AMICI

The American Unity Legal Defense Fund is an
independent, national, non-profit educational
organization dedicated to preserving our historical
unity as Americans into the 21st Century.1
www.americanunity.org. AULDF has filed amici
curiae briefs in this Court, including in Mohawk
Industries v. Williams, No. 05-465 (brief of the
Immigration Political Action Committee and five
other organizations), and Crawford v. Marion County
Election Board, Nos. 07-21, 07-25.
The English Language Political Action
Committee is an independent, bipartisan national
committee devoted to promoting English as the
Official Language.
ProEnglish is a member-supported, national,
non-profit organization working to educate the public
about the need to protect English as our common
language and to make it the official language of the
United States. www.proenglish.org. ProEnglish has
been active in the courts, including providing
essential support to proponents of an Arizona
initiative to make English the official language.
Arizonans for Official English v. Arizona, No. 95-974.
The Center for Equal Opportunity is a
national, non-profit organization which opposes
1 Pursuant to Rule 37.6, amici certify that no counsel
for a party authored this brief in whole or in part, no such
counsel or party made a monetary contribution intended to fund
the preparation or submission of the brief, and no person other
than the amici curiae or their counsel made such a monetary
contribution. All parties have consented to the filing of this
brief.

2
bilingual education, because it segregates students by
national origin, encourages identity politics, and fails
to teach children English. www.ceousa.org. CEO has
assisted parents of English Language Learners to
challenge ineffective bilingual education programs in
several states.

PRELIMINARY STATEMENT

The decision below rests on two fundamental
errors:
A misunderstanding and misapplication of the
Castaneda test long used to evaluate claims
under the Equal Educational Opportunities
Act (“EEOA”); and,
A misunderstanding of the relationship
between the EEOA and Title III of the No
Child Left Behind Act (“NCLB”).
Both errors, described in more detail below,
stem from the failure of the Ninth Circuit to
understand the evolution in methods for teaching
English Language Learners. Demonstrating the
errors requires a brief description of the threedecade-
long movement from “bilingual education” to
more effective English Immersion instruction.
“[T]he debate is a neutral one, about which
system will provide LEP [Limited English Proficient]
children with the best education to enable them to
function as American citizens and enjoy the
opportunities and privileges of life in the United
States.” Valeria v. Davis, 307 F.3d 1036, 1041 (9th
Cir. 2002), quoting, Valeria G. v. Wilson, 12
F.Supp.2d 1007, 1014-15 (N.D. Cal. 1998) (“This
court cannot discern from the face of Proposition 227
any hidden agenda of racial or national origin
discrimination against any group”).
3
The movement from “bilingual education” to
“English language acquisition” is, to the leading
authorities, a civil rights and enabling issue:
Without competence in the standard
language of the society, immigrants . . . are at a
disabling disadvantage, unable to share in the
economic opportunities of a democratic society.
. . . The sooner this enabling skill is acquired,
the sooner children can join in the full life of
their school and community.
Rosalie Pedalino Porter, FORKED TONGUE: THE
POLITICS OF BILINGUAL EDUCATION, 2nd ed. (1996), at
254.

A. “Bilingual Education:” Teaching
English Language Learners in Their
Native Languages:
Before Lau v. Nichols, 414 U.S. 563 (1974),
efforts to teach English Language Learners were
haphazard or non-existent. In Lau, for example, this
Court noted that of 2,856 children of Chinese
ancestry in the San Francisco school system who did
not speak English, 1,800 received no supplemental
instruction to teach them English. Lau, 414 U.S. at
564. California law at the time provided for assistance
to those who could not speak English, but at the
discretion of the school system. 414 U.S. at 565.
Justice Douglas, writing for the Court, found
that the failure to provide at least some assistance
violated Section 601 of Title VI of the Civil Rights Act
of 1964, because it “denies them a meaningful
opportunity to participate in the educational
program.” 414 U.S. at 568. This Court did not
4
mandate any particular form of assistance for
language-minority children:
No specific remedy is urged upon us.
Teaching English to the students of Chinese
ancestry who do not speak the language is one
choice. Giving instructions to this group in
Chinese is another. There may be others.
Petitioners ask only that the Board of
Education be directed to apply its expertise to
the problem and rectify the situation.
414 U.S. at 564-65.
One early attempt at teaching English
Language Learners was “bilingual education.”
“‘Bilingual education/native language instruction’
means a language acquisition process for students in
which much or all instruction, textbooks, or teaching
materials are in the child's native language other
than English.” A.R.S. § 15-751.1 (2008) (emphasis
added).
“Bilingual programs make use of students’
native language in the classroom while developing
English.” Arizona Dept. of Education, The Effects of
Bilingual Education Programs and Structured
English Immersion Programs on Student
Achievement: a Large-Scale Comparison, July 2004,
at 1.

B. Bilingual Education Was Preferred by
Federal Policies, But Proved Largely
Ineffective:
In the Bilingual Education Act of 1974, 20
U.S.C. § 880b et seq. (1976), Congress expressly
directed that the state and local agencies receiving
funds under the Act were free to develop their own
5
programs. Conf.Rep. No. 93-1026, 93d Cong., 2nd
Sess. (1974), reprinted in (1974) U.S.Code Cong. &
Ad.News 4093, 4206.
The federal Department of Health, Education
and Welfare, however, issued the so-called “Lau
Guidelines,” which promoted the use of bilingual
education. “Following the Supreme Court's decision
in Lau, HEW developed the ‘Lau Guidelines’ as a
suggested compliance plan for school districts which,
as a result of Lau, were in violation of Title VI
because they failed to provide any English language
assistance to students having limited English
proficiency.” Castaneda v. Pickard, 648 F.2d 989,
1006 (5th Cir. 1981) (“Castaneda”). “Under the Lau
Guidelines, plaintiffs argue, ‘pressing English on the
child is not the first goal of language remediation.’”
Id.
The Lau Guidelines were the result of a
policy conference organized by HEW; these
guidelines were not developed through the
usual administrative procedures employed to
draft administrative rules or regulations. The
Lau Guidelines were never published in the
Federal Register. Since the Department itself
in its administrative decision found that
RISD’s [the Raymondville Independent School
District’s] departure from the Lau Guidelines
was not determinative of the question whether
the district complied with Title VI, we do not
think that these guidelines are the sort of
administrative document to which we
customarily give great deference in our
determinations of compliance with a statute.
Id.
6
Nevertheless, most federal funding and school
system pedagogical decisions assumed the Lau
Guidelines as a federal mandate, and suits, including
the landmark Castaneda case, were brought alleging
violations of the Guidelines. Id.
Over time, these bilingual education programs
proved inadequate to teaching children either English
or subject matter. In 1981, the U.S. Department of
Education concluded that “the case for the
effectiveness of ‘Transitional Bilingual Education’ is
so weak that exclusive reliance on this instructional
method is clearly not justified.” Keith Baker, et al.,
Effectiveness of Bilingual Education: A Review of the
Literature, Technical Analysis Report Series, U.S.
Dept. of Education, at 8 (“Dept. of Education Study”).
In 1985, the Massachusetts Board of Education
concluded that “it appears that bilingual programs
both segregate them and fail to teach a substantial
proportion of them the skills which, according to the
Lau decision, are essential.” Commonwealth of
Massachusetts Board of Education, Report No. 5 to
the United States District Court, District of
Massachusetts on Boston School Desegregation, Vol.
2, July 15, 1985, at 74 (emphasis in original).
In 1992, a California State study examined 20
years of bilingual education, and found no evidence
that native language instruction is beneficial, and
also found that students are kept in bilingual
education programs for too many years. Paul
Berman, et al., Meeting the Challenge of Language
Diversity: An Evaluation of Programs for Pupils of
Limited Proficiency in English, BW Associates,
Berkeley, California, 1992, at 38.
In 1994, the Massachusetts Bilingual
Education Commission analyzed 23 years of bilingual
7
education, and concluded that there was no evidence
that “transitional bilingual education” programs
produced good results. Massachusetts Bilingual
Education Commission, Striving for Success: The
Education of Bilingual Pupils: A Report of the
Bilingual Education Commission, Boston, 1994.
In 1996, the Rossell/Baker study analyzed 76
reliable research studies on bilingual education,
concluding there is no evidence that bilingual
education programs are superior for teaching either
English or subject matter. Christine Rossell, et al.,
Bilingual Education in Massachusetts: The Emperor
Has No Clothes, Pioneer Institute, Boston,
Massachusetts, 1996 (“Rossell”).
In 1998, the National Research Council of the
National Institutes of Medicine reviewed 29 years of
bilingual education and concluded that there was no
long-term advantage in teaching literacy in a child’s
native language and no negative effects from teaching
English language literacy first. Commission on
Behavioral and Social Sciences and Education,
National Research Council, Institutes of Medicine
Educating Language Minority Children, National
Academy Press, Washington, D.C., 1998.

C. Some Schools Introduced New
“English Immersion” Teaching Methods:
Some schools began using an alternative
method of instruction: “immersing” the students in
English, and providing special assistance in other
languages only when needed. In 1981 the U.S.
Department of Education described the rationale:
The commonsense observation that
children should be taught in a language they
8
understand does not necessarily lead to the
conclusion they should be taught in their home
language. They can be successfully taught in a
second language if it is done right. The key to
successful teaching in the second language
seems to be to insure that the second language
and subject matter are taught simultaneously
so that subject content never gets ahead of
language. Given the American setting, where
the language-minority child must ultimately
function in an English-speaking society,
carefully conducted second-language
instruction in all subjects may well be
preferable to bilingual methods.
Dept. of Education Study, at 8.
A 1996 Massachusetts review of 76 studies
describes the English Immersion classroom:
The language of instruction in a structured
immersion program is English at a level the
child can understand in a self-contained
classroom of LEP students who are at
approximately the same level of English
language knowledge and the same age. The
children in a structured immersion classroom
do not have to be of the same language
background, but the teacher should be trained
in second language acquisition techniques.
These programs should be fully integrated into
regular schools so that students are exposed to
English speakers on the playground, in the
cafeterias, the halls, assemblies, and other
areas before, during, and after school. LEP
students should probably not remain in selfcontained
classrooms for more than a year,
even if the language of instruction is English.
9
Rossell, supra, at 9.
Arizona law, enacted by Proposition 203,2
defines one such method, known as Structured
English Immersion (“SEI”):
“Sheltered English immersion” or
“structured English immersion” means an
English language acquisition process for young
children in which nearly all classroom
instruction is in English but with the
curriculum and presentation designed for
children who are learning the language. Books
and instructional materials are in English and
all reading, writing, and subject matter are
taught in English. Although teachers may use
a minimal amount of the child's native
language when necessary, no subject matter
shall be taught in any language other than
2 “Proposition 203 largely abolished bilingual education,
replacing it with sheltered English immersion, a teaching
method ‘in which nearly all classroom instruction is in English
but with the curriculum and presentation designed for children
who are learning the language.’” Flores v. Arizona, 516 F.3d
1140, 1149 (9th Cir. 2008).
Contrary to the lower court’s assertion about bilingual
education being “abolished,” bilingual education teaching
methods are still available in Arizona. A.R.S. §§ 15-752, 15-753
(2000). Structured English Immersion (“SEI”) is the default
instructional method; children who obtain waivers, based on
educators’ evaluations and parental consent, may be placed in
bilingual education classrooms. Id. Approximately 7,900
students obtained waivers and participated in bilingual
education programs in the 2002-03 academic year. Arizona Dept.
of Education, The Effects of Bilingual Education Programs and
Structured English Immersion Programs on Student
Achievement: a Large-Scale Comparison, July 2004. (“Arizona
Student Achievement Study”), at Table 1, P. 5. More than
65,000 students participated in SEI programs. Id.
10
English, and children in this program learn to
read and write solely in English.
A.R.S. § 15-751.5 (2008).

D. Structured English Immersion Proved
More Successful Than Bilingual
Education:
In 1992, the Research in English Acquisition
and Development Institute studied El Paso, Texas’s,
“Bilingual Immersion Project,” and found that, over
the ten-year study period, Limited English
Proficiency children in English immersion classes
consistently outperformed children in native
language instruction classes in both learning English
and in subject matter. Russell Gersten, et al.,
Bilingual Immersion: A Longitudinal Study, READ
Institute, Washington, D.C. 1992.
In 1994, the New York City Board of Education
found that students in English as a Second Language
classes (similar to immersion programs) exited their
special program faster and did better in mainstream
classrooms than students taught in their native
language. New York City Board of Education,
Educational Progress of Students in Bilingual and
ESL Programs: a Longitudinal Study, 1990-1994.
The Arizona Department of Education
reported that, in academic year 2002-03, “[T]hose
students in SEI programs significantly outperformed
bilingual students in 24 out of 24 comparisons. . . .
[B]ilingual students are more than a year behind
their SEI counterparts in seventh and eighth grade.”
Arizona Student Achievement Study, at 3.
Similar results were achieved in California.
11
California made headlines across the
country when test scores were released after
the passage of Proposition 227. Opponents of
the law had predicted it would spell disaster for
English learners. But quite the opposite
occurred. Only a quarter of English learners
scored in the top two proficiency categories on
the California English Language Development
Test (CELDT) in 2001, shortly after
Proposition 227 was implemented, and the first
year the exam was given. By 2005, almost half
did – 47 percent.
Kelly Torrance, Immersion Not Submersion: Lessons
from Three California Districts’ Switch From
Bilingual Education to Structured Immersion, Vol. II.
Lexington Institute, Arlington, VA, 2006, at 4.
In addition, those who completed the program
sometimes outdid native English-speakers in test
performance.
A larger group of students start as English
Learners but achieve proficiency, making them
Reclassified Fluent English Proficient (RFEP).
These students “do just as well as, and, in
some cases, even better than non-EL students
on every state standardized academic test,
including the California Standards Test, the
Stanford Assessment Test and the California
High School Exit Exam,” notes the 2007
Evaluation Report on the California High
School Exit Exam (CAHSEE) by Human
Resources Research Organization.
Joanne Jacobs, The Education of J*A*I*M*E
C*A*P*E*L*L*A*N: English Learner Success in
California Schools. Lexington Institute. Arlington,
VA, 2008, at 5.
12
“Remarkably, 52 percent of reclassified
students passed the college-prep courses required by
the University of California and California State
University systems in 2003, compared to only 32
percent of students who speak English as their first
language.” Id., at 7.

E. Parents and Educators Began
Rejecting Bilingual Education Programs
and Advocating for English Immersion
Programs:
Given these dramatic differences in success
rates, it was inevitable that parents and caring
educators began clamoring for more successful
programs for English Language Learners. “Over the
past few years, the Committee has heard a growing
number of complaints from parents whose children
have been placed and retained in bilingual education
courses without their permission or knowledge. In
many instances, these parents faced great resistance
in their efforts to remove their children from such
programs.” Comm. On Ed. & the Work Force, “No
Child Left Behind Act of 2001,” H.R. Rep. 107-63, Pt.
1, at 277.
One was Rita Montero, a member of the
Denver, Colorado, School Board, and once a supporter
of bilingual education, who changed her view: “As a
mother whose child was forced to stay in this
program, I know its problems first-hand.”3 Montero’s
son, Camilo, was put into a bilingual education class,
at her request. Her second-grade son had been doing
3 Rita Montero, “A Tale of Two Tongues,” Denver Post, May 25,
1997.
13
fractions and adding three digit numbers, but his
bilingual education class was far behind Camilo’s
capabilities: “So I said to the teacher this is it; I want
him to be taken out and put in an English-speaking
class.”4
Similar parent and educator disquiet over
bilingual education’s failures led to successful voter
initiatives in California (1998), Arizona (2000), and
Massachusetts (2002):
Well, the overwhelming practical evidence
is that bilingual education has failed on every
large scale case that's been tried in the United
States, in particular in California. The origins
of this initiative was the case last year of a lot
of immigrant Latino parents in downtown LA,
who had to begin a public boycott of their local
elementary school to try to force the school to
give their children the right to be taught
English, which the school was denying.
“Double Talk,” supra (Statement of Ron Unz). The
Ninth Circuit repeatedly upheld California’s
Proposition 227. Valeria v. Davis, supra; Calif.
Teachers Ass’n v. State Bd. Of Ed., 271 F.3d 1141 (9th
Cir. 2001).
The California reform movement stimulated
Arizona’s Proposition 203, which passed with 63% of
the vote on the Nov. 2000 ballot. Daniel Gonzalez,
“Arizona Win Encourages Bilingual Ed Opponents,”
Arizona Republic, Nov. 20, 2000, A-1.
In 2002, Massachusetts voters adopted
Question 2 by a vote of 68% to 32% of those voting.
4 PBS Online Newshour, “Double Talk,” Newshour Transcript,
Sept. 21, 1997 (“Double Talk”).
14
Elections Division, State of Massachusetts,
“Massachusetts 2002 Election Ballot Question
Results”.
Lincoln Jesus Tamayo, statewide chair of
English for the Children of Massachusetts,
argued that a ballot initiative was the only
solution. “As a Latino immigrant child who
arrived in America speaking no English, I
know the importance of learning that
language. As a high school principal, I have
seen the dismal results of our current so-called
bilingual programs, which teach English much
too slowly. And as Chairman of the
Massachusetts Bilingual Education Advisory
Council, I recognized the hopelessness of
legislative efforts to reform this dreadful
system of Spanish-only instruction. We’ve
already lost too many generations of Latino
students; the ‘English for the Children’
initiative is their only chance.”
The views of Mr. Tamayo were seconded by
those of Co-Chair Rosalie Pedalino Porter,
herself an immigrant child, former director of
bilingual programs for Newton, MA, and
author of Forked Tongue, a powerful critique
of bilingual education. “I learned English as a
child in school, but was later forced to
administer a system which prevented other
immigrant children from doing the same. After
wasting fifteen years trying to reform bilingual
programs, I’ve decided we must end them
instead.”
English for the Children of Massachusetts, Ballot
Initiative Campaign Launched to Dismantle
Bilingual Education in Massachusetts, July 31, 2001.
15

F. Federal Policy Preferences Changed
to Favor English Language Acquisition:
This evolution in teaching methods gradually
penetrated federal policy, leading to the end of
policies and “Lau guidelines” preferring bilingual
education. In 2001, Congress enacted Title III of the
No Child Left Behind Act, Pub.L. No. 107-110, 115
Stat. 1425 (“NCLB”).
The NCLB reversed the federal educational
priorities for English Language Learners and
promoted English language acquisition. See, e.g.,
Section 1072 of NCLB, replacing “Office of Bilingual
Education and Minority Languages Affairs’’ and
‘‘Office of Bilingual Education’’ in the Department of
Education Organization Act (20 U.S.C. 3401 et seq.),
with ‘‘Office of English Language Acquisition,
Language Enhancement, and Academic Achievement
for Limited English Proficient Students’’.
Yet we know what happened to bilingual
education. It got off track. Instead of kids
learning English, we ended up isolating kids,
took them on a train track that took them to
their language and left them there, put them in
schools and classrooms where they basically
were being taught in their language and they
were not being allowed to learn English
essentially, or they were not being asked to
learn English.
147 Cong. Rec. S13328 (Dec. 17, 2001)(Statement of
Sen. Gregg).
The new Title III of NCLB requires federal
grantees “to help ensure that children who are
limited English proficient, including immigrant
16
children and youth, attain English proficiency,
develop high levels of academic attainment in
English, and meet the same challenging State
academic content and student academic achievement
standards as all children are expected to meet.” 20
U.S.C. § 6812(1).
Thus, where “[u]nder the Lau Guidelines,
plaintiffs argue, ‘pressing English on the child is not
the first goal of language remediation’,” Castaneda,
648 F.2d at 1006, under Title III of the NCLB,
attaining English proficiency was the first goal. 20
U.S.C. § 6812(1).
The U.S. Department of Education describes
the new NCLB requirements for schools as:
School districts must use Title III funds to
provide high-quality language instruction
programs that are based on scientifically based
research, and that have demonstrated that
they are effective in increasing English
proficiency and student achievement.
Districts are required to provide highquality
professional development to classroom
teachers, principals, administrators, and other
school or community-based organizational
personnel in order to improve the instruction
and assessment of limited English proficient
students.
Districts are held accountable for making
adequate yearly progress as described in Title I
and meeting all annual achievement objectives.
U.S. Dept. of Education, “Title III – Language
Instruction For Limited English Proficient And
Immigrant Students Language Instruction for
Limited English Proficient and Immigrant Students
17
(III),” No Child Left Behind: A Desktop Reference
(“NCLB Desktop Reference”).
Thus, America’s methods for teaching English
Language Learners have moved beyond ineffective
bilingual education programs measured by “process”
or “inputs”, toward a result-oriented test of whether
children are succeeding. The decision below missed
this evolution:
If anything, after 2000, when Arizona
moved away from bilingual education and
required most courses to be taught in English,
regardless of students’ language abilities, these
challenges have become greater: a tenth
grader, for example, who speaks no English but
must pass a biology course taught entirely in
English will require considerable assistance.
516 F.3d at 1169.
This statement, central to the Ninth Circuit’s
belief that more resources were necessary, does not
reflect an understanding of the Structured English
Immersion program, or its results. The essence of SEI
programs is that students are given the assistance
necessary, but based on an individual student’s
needs, not on an assumption that the student will not
do well in an English-language curriculum.

SUMMARY OF ARGUMENT
The Ninth Circuit decision below made two
fundamental errors:
misunderstanding and misapplying the
Castaneda test long used to evaluate claims
under the Equal Educational Opportunities
Act; and,
18
misunderstanding Title III of the No Child Left
Behind Act, and misapplying the relationship
between the EEOA and Title III.
Both errors stem from the same root: a failure
of the Ninth Circuit to understand the evolution in
methods for teaching English Language Learners,
described supra.
The three-part Castaneda test was formulated
to permit courts to evaluate claims under the Equal
Educational Opportunities Act, the post-Lau effort to
insure that school systems made a “good faith” effort
to assist English Language Learners. The Ninth
Circuit attempted to apply the Castaneda test in this
case, but did not understand it. As a result, the Ninth
Circuit changed the Castaneda test from one focused
on results, to one measuring inputs. Because
demands for more money are limitless, this change
mires the Ninth Circuit in inappropriate legislative
decision-making, and contradicts the evolution of
teaching methods now reflected in federal law.
In addition, the Ninth Circuit distorted and
mis-applied the results test which is explicitly part of
the Castaneda test. The lower court recited, but
dismissed evidence that Arizona is achieving the kind
of results sought in the No Child Left Behind Act and
the EEOA.
Similarly, the decision below misunderstood
the relationship between the EEOA and Title III of
the NCLB. In the context of the evolution of teaching
methods, described supra, Title III of the NCLB can
be seen as the legislative ratification of the three-part
Castaneda test. In particular, both the third prong of
the Castaneda test and Title III require measurable
results. The Ninth Circuit could not connect the two
results tests, even though they are essentially the
19
same. Thus, the Ninth Circuit not only failed to
understand the Castaneda test and how it applies to
Arizona’s program, but also how the EEOA and Title
III harmonize toward the same goal.
Adopting the Ninth Circuit’s new formulation
of the EEOA might resurrect one of the chief
criticisms of ineffective bilingual education programs:
that they keep English Language Learners segregated
longer than necessary, not only slowing their English
language acquisition but impeding their ability to
learn school subjects taught in English. Schools which
see ELL assistance programs as means to squeeze
additional funds out of reluctant legislatures would
feel pressure to keep the students in the programs
longer. This would mean that the Ninth Circuit
would be promoting exactly what it purports to solve:
keeping English Language Learners away from
English proficiency.

ARGUMENT

I. THE DECISION BELOW DISTORTS AND
MISAPPLIES THE CASTANEDA TEST.

A. The Equal Educational Opportunities
Act:

The Equal Educational Opportunities Act of
1974, 20 U.S.C. § 1703(f), says, in relevant part: “No
State shall deny equal educational opportunity to an
individual . . . by – (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
The legislative history of the EEOA “is very
sparse, indeed almost non-existent.” Castaneda, 648
F.2d at 1001. “The EEOA was a floor amendment to
the 1974 legislation amending the Elementary and
Secondary Education Act of 1965, 88 Stat. 338-41.”
Id.
The interpretation of Section 1703(f) has
generally centered on the requirement that schools
take “appropriate action to overcome language
barriers.”
The difficult question presented by
plaintiffs’ challenge to the current language
remediation programs in RISD is really
whether Congress in enacting § 1703(f)
intended to go beyond the essential
requirement of Lau, that the schools do
something, and impose, through the use of the
term “appropriate action” a more specific
obligation on state and local educational
authorities.
Castaneda, 648 F.2d at 1008.
In Serna v. Portales Municipal Schools, 351
F.Supp. 1279 (D.N.M.1972), aff’d on other grounds,
499 F.2d 1147 (10th Cir. 1974), the district court
found an unconstitutional denial of equal educational
opportunity. The Tenth Circuit affirmed the decision
on the non-constitutional ground of Section 601 of
Title VI. The court further stated that because
Section 601 gives a right to bilingual instruction,
bilingual-bicultural education can be ordered. 499
F.2d at 1154.
The Tenth Circuit, in Keyes v. School District
No. 1, 521 F.2d 465 (10th Cir. 1975), cert. denied, 423
U.S. 1066 (1976), criticized Serna, refused to order
bilingual-bicultural education as a remedy, and
21
expressly held that a specific program of bilingualbicultural
education was not required by the
Fourteenth Amendment. On the other hand, in
United States v. Texas Education Agency, 532 F.2d
380, 398 (5th Cir.), vacated sub nom. Austin
Independent School District v. United States, 429 U.S.
990 (1976), a certain form of bilingual-bicultural
education was held to be a proper part of a remedy
fashioned by the district court to eliminate de jure
segregation. A similar holding where de jure
segregation had existed was made in United States v.
Texas, 342 F.Supp. 24 (E.D.Tex.1971), aff’d, 466 F.2d
518 (5th Cir. 1972).
The early judicial analysis and application
reached perhaps its deepest point in Guadalupe
Organization, Inc. v. Tempe Elementary School Dist.
No. 3, 587 F.2d 1022 (9th Cir 1978). In Guadalupe,
the Ninth Circuit was asked whether Lau and the
HEW guidelines required Tempe, Arizona, “to
provide all non-English-speaking Mexican-American
or Yaqui Indian students attending district schools
with bilingual-bicultural education” which, inter alia,
“reflects the historical contributions of people of
appellants’ descent to the State of Arizona and the
United States.” Guadalupe, 587 F.2d at 1024.
The Ninth Circuit rejected the request for
bilingual-bicultural education:
We hold that the appellees fulfilled their
equal protection duty to children of Mexican-
American and Yaqui Indian origin when they
adopted measures, to which the appellants do
not object, to cure existing language
deficiencies of non-English-speaking students.
There exists no constitutional duty imposed by
the Equal Protection Clause to provide
22
bilingual-bicultural education such as the
appellants request.
587 F.2d at 1026-27. The Ninth Circuit similarly
rejected claims under Section 601 of the Civil Rights
Act of 1964 and under the EEOA. 587 F.2d at 1029-
30.
The Ninth Circuit explained:
Whatever may be the consequences,
good or bad, of many tongues and cultures
coexisting within a single nation-state,
whether the children of this Nation are
taught in one tongue and about primarily
one culture or in many tongues and about
many cultures cannot be determined by
reference to the Constitution. We hold,
therefore, that the Constitution neither
requires nor prohibits the bilingual and
bicultural education sought by the
appellants. Such matters are for the people
to decide.
587 F.2d at 1027.

B. The Fifth Circuit Crafted a Three-
Part Castaneda Test to Evaluate EEOA
Claims:

In 1981, the Fifth Circuit handed down the
landmark decision in Castaneda v. Pickard, 648 F.2d
989 (5th Cir. 1981). The Raymondville, Texas,
bilingual education program offered intensive
language instruction, in addition to bilingual content
instruction, for the first three years. “The articulated
goal of the program is to teach students fundamental
reading and writing skills in both Spanish and
English by the end of third grade.” 648 F.2d at 1004-
23
05. After the third grade, all instruction was in
English, with teachers’ aides and other assistance for
language-minority children. Special programs,
including English as a Second Language and special
tutoring, were available to all children, with special
emphasis on students who moved into the school
district after the third grade. 648 F.2d at 1005.
The plaintiffs asserted that the Raymondville
program did not comply with the requirements of
Title VI, the EEOA, and the Lau Guidelines. 648 F.2d
at 1006. “Specifically, plaintiffs contend that the
articulated goal of the Raymondville program to teach
limited English speaking children to read and write in
both English and Spanish at grade level is improper
because it overemphasizes the development of
English language skills to the detriment of the child's
overall cognitive development.” Id.
The Fifth Circuit first swiftly disposed of the
Title VI and Lau Guidelines questions.
Whatever the deficiencies of the RISD's
program of language remediation may be, we
do not think it can seriously be asserted that
this program was intended or designed to
discriminate against Mexican-American
students in the district. Thus, we think it
cannot be said that the arguable inadequacies
of the program render it violative of Title VI.
648 F.2d at 1007.
The Fifth Circuit then turned to the EEOA
question:
We think Congress' use of the less specific
term, “appropriate action,” rather than
“bilingual education,” indicates that Congress
intended to leave state and local educational
authorities a substantial amount of latitude in
24
choosing the programs and techniques they
would use to meet their obligations under the
EEOA. However, by including an obligation to
address the problem of language barriers in the
EEOA and granting limited English speaking
students a private right of action to enforce
that obligation in § 1706, Congress also must
have intended to insure that schools made a
genuine and good faith effort, consistent with
local circumstances and resources, to remedy
the language deficiencies of their students and
deliberately placed on federal courts the
difficult responsibility of determining whether
that obligation had been met.
648 F.2d at 1009.
The Fifth Circuit then formulated a three-part
test which has guided reviews of bilingual education
programs since its formulation:
In a case such as this one in which the
appropriateness of a particular school system's
language remediation program is challenged
under § 1703(f), we believe that the
responsibility of the federal court is threefold.
First, the court must examine carefully the
evidence the record contains concerning the
soundness of the educational theory or
principles upon which the challenged program
is based. . . .
The court’s second inquiry would be
whether the programs and practices actually
used by a school system are reasonably
calculated to implement effectively the
educational theory adopted by the school. We
do not believe that it may fairly be said that a
school system is taking appropriate action to
25
remedy language barriers if, despite the
adoption of a promising theory, the system
fails to follow through with practices, resources
and personnel necessary to transform the
theory into reality.
Finally, a determination that a school
system has adopted a sound program for
alleviating the language barriers impeding the
educational progress of some of its students
and made bona fide efforts to make the
program work does not necessarily end the
court’s inquiry into the appropriateness of the
system's actions. If a school’s program,
although premised on a legitimate educational
theory and implemented through the use of
adequate techniques, fails, after being
employed for a period of time sufficient to give
the plan a legitimate trial, to produce results
indicating that the language barriers
confronting students are actually being
overcome, that program may, at that point, no
longer constitute appropriate action as far as
that school is concerned. We do not believe
Congress intended that under § 1703(f) a
school would be free to persist in a policy
which, although it may have been
“appropriate” when adopted, in the sense that
there were sound expectations for success and
bona fide efforts to make the program work,
has, in practice, proved a failure.
648 F.2d at 1009-10.
The Castaneda test continues to be the
benchmark for evaluating challenges to programs to
aid English Language Learners. The Fifth Circuit
later applied the Castaneda test to a statewide
26
system. United States v. Texas, 680 F.2d 356, 371 (5th
Cir. 1982). The Seventh Circuit similarly applied the
Castaneda test. Gomez v. Illinois State Bd. Of
Education, 811 F.2d 1030, 1041-42 (7th Cir. 1987)
(EEOA applies to state as well as local agencies).
The plaintiffs and the court below used the
Castaneda test in this case. “Flores alleged,
consistent with Castaneda step two, that Arizona had
‘failed to provide financial and other resources
necessary for adequate implementation’ of its ELL
programs.” 516 F.3d at 1146.

C. The Decision Below Distorts and
Misapplies the Castaneda Test:

The lower court’s opinion misquotes and
misunderstands the Castaneda test. Because the
court below apparently did not understand the Fifth
Circuit’s careful analysis in Castaneda, its additions
converted a “good faith” test into a numerical
“resources” test, placing the court in the position of
dictating appropriations, rather than evaluating a
program.
The court below described the Castaneda test
as:
The Castaneda framework is three-fold:
First, courts must be satisfied that the “school
system is purs[uing] a program informed by an
educational theory recognized as sound by
some experts in the field or, at least, deemed a
legitimate experimental strategy.” Castaneda,
648 F.2d at 1009. Second, “the programs and
practices actually used by a school system
[must be] reasonably calculated to implement
effectively the educational theory adopted by
27
the school.” Id., at 1010. There must, in other
words, be sufficient “practices, resources and
personnel ... to transform the theory into
reality.” Id. Third, even if theory is sound and
resources are adequate, the program must be
borne out by practical results. Id.
516 F.3d at 1146 (emphases added).
The highlighted language is the Ninth Circuit’s
distortion of the Castaneda test. An analysis of the
Arizona programs under the three Castaneda prongs
illustrates the effect of this switch from substantive
analysis to analysis of “process:”
1. THEORY: Proposition 203 Adopted a
Recognized Educational Theory.
The first Castaneda test is whether the
program uses a recognized educational theory.
Arizona’s Proposition 203 uses a theory proven
successful in California, and very similar to that
adopted two years later by Congress in Title III of the
NCLB Act. No one in this case disputes that
Arizona’s educational theory is recognized.
2. “GOOD FAITH” IMPLEMENTATION:
Arizona Has Implemented the
Program Appropriately.
This second Castaneda prong is the crux of the
plaintiffs’ challenge in this case. 516 F.3d at 1146.
The Ninth Circuit has converted the second prong of
the Castaneda test from one focused on
implementation of theory into a resources test. “ELL
students need extra help and that costs extra money.”
516 F.3d at 1169.
The Ninth Circuit, using its theory that
“challenges have become greater” under Arizona’s
28
SEI program, 516 F.3d at 1169, didn’t recognize the
differences between the old bilingual education
program and more modern approaches. The Ninth
Circuit excerpted the second prong of the Castaneda
test to look to specific dollar inputs rather than good
faith efforts:
Second, “the programs and practices
actually used by a school system [must be]
reasonably calculated to implement effectively
the educational theory adopted by the school.”
Id., at 1010. There must, in other words, be
sufficient “practices, resources and personnel ...
to transform the theory into reality.”
Id., emphasis added.
By removing words, the Ninth Circuit
converted the second prong into a test of whether the
theory could become “reality.” This is a results test.
The only way to keep the lower court’s version of the
second prong from being a superfluous results test
would be if it were construed solely as an “inputs”
test, similar to the old Lau Guidelines. Yet the
Castaneda court, as noted above, summarily rejected
the Lau Guidelines as a measure to judge compliance
with the EEOA. 648 F.2d at 1007.
The futility of the Ninth Circuit’s “resources”
test can be seen in a comparison of the Nogales
schools and those of “the more affluent Scottsdale
Unified School District [which] spends more than
twice as much money as does [Nogales] for its ELL
students, yet Scottsdale’s ELL 10th graders score
worse on Arizona’s AIMS academic achievement tests
than [Nogales’s] ELL 10th graders.” Brief of
Petitioner Superintendent (“Superintendent’s Br.”)
at 43 n. 19. Adding more resources is not an adequate
measure of implementation or of results.
29
The second prong is not, in fact, a resources
test. It is a balancing test of implementation. What
Castaneda actually said was that:
Congress also must have intended to insure
that schools made a genuine and good faith
effort, consistent with local circumstances and
resources, to remedy the language deficiencies
of their students. . . .
The court’s second inquiry would be
whether the programs and practices actually
used by a school system are reasonably
calculated to implement effectively the
educational theory adopted by the school.
648 F.2d at 1009 (emphasis added).
Arizona has implemented its Structure English
Immersion program appropriately. It has passed
legislation to implement the voters’ decision. 516 F.3d
at 1167. Nogales schools score in the top ranks of
Arizona schools. Pet. App., at 363a-366a. Even the
Ninth Circuit notes that Arizona has changed its
programs to meet the needs of its English Language
Learners in these new programs. “[M]any of these
specific problems have been solved by better
management in NUSD, and because school funding
has generally increased. . . .” 516 F.3d at 1168.
The Castaneda test is one of “genuine and
good faith effort.” The Ninth Circuit is familiar with
“good faith” tests regarding the implementation of
English Language Learner programs. California
Teachers Ass’n, 271 F.3d at 1154-55 (upholding
California’s Prop. 227, in part, by looking at a variety
of “good faith” tests).
The Ninth Circuit did not use its own “good
faith” test, or the Castaneda “good faith
implementation” test in this case. Perhaps the Ninth
30
Circuit believed that it could evaluate and disregard
competing resource claims to satisfy the requirements
of the EEOA, but having both ignored the evolution
in education theory and practice and made a flawed
assumption about the resources needed to implement
English immersion programs, the Ninth Circuit was
in no position to judge whether Arizona’s effort was
“genuine” or in “good faith.” Thus, it had to look
solely to a dollar-input test.
The difficulty with the “process mentality”
below was predicted by the Fifth and Seventh
Circuits:
Among these are such questions as how
broad a power of “de novo” review and revision
may be exercised by a district court over
language barrier programs, consistent with the
rule that Congress cannot invest Article III
courts with jurisdiction to “exercise functions
which are essentially legislative or
administrative.”
Castaneda by Castaneda v. Pickard, 680 F.2d 456, 471
n. 24 (5th Cir. 1986); Gomez, 811 F.2d at 1041 (“we
must be careful not to substitute our suppositions for
the expert knowledge of educators or our judgment
for the educational and political decisions reserved to
the state and local agencies”).
Demands for funds are endless. Schools can
always find a reason to “need” more funds.
Determining appropriations levels by balancing these
competing demands is one of the “quintessentially
legislative” functions. Sorenson v. Secretary of
Treasury of U.S., 475 U.S. 851, 865 (1986).
Because it failed to understand the nature of
the second prong of the Castaneda test, the decision
below both inappropriately muddied the test itself
31
and unnecessarily injected itself into legislative
resources decisions. The Castaneda test was carefully
drawn to avoid separation of powers issues while
protecting English Language Learners; the Ninth
Circuit’s ambiguous rewrite was not.

3. RESULTS: Arizona’s SEI Program is
Achieving Results Better Than Its Prior
Bilingual Education Program.
As shown by the long evolution of English
Language Learner teaching, the third prong of the
Castaneda test is perhaps the most important: does
the program get results?
The EEOA does not establish measures for
determining results. Title III of the No Child Left
Behind Act does: “to help ensure that children who
are limited English proficient, including immigrant
children and youth, attain English proficiency,
develop high levels of academic attainment in
English, and meet the same challenging State
academic content and student academic achievement
standards as all children are expected to meet.” 20
U.S.C. § 6812(1).
Arizona does seem to be getting results.
Arizona’s ELLs who have successfully completed
Arizona’s new “Structured English Immersion”
program perform better on tests of mathematics, and
English language writing and reading skills than do
native-English-speaking children. Accountability
Division, Research and Evaluation Section, Arizona
Dept. of Education, “State Report Cards,” Dec. 29,
2008.
For example, in Fiscal Year 2007, 82% of ELLs
in their second year of classification as English
Proficient (“CFEP2”) passed their Arizona
32
Instrument to Measure Standards (“AIMS”) test in
writing in English, compared to only 78% of native
English speakers. Id. 71% of the CFEP2 students
passed their AIMS math test, compared to 68% of
native English speakers. Id. In Fiscal Year 2008, the
achievement figures were comparable between ELLs
and native speakers; for example, the AIMS pass rate
for CFEP2 students was 72% in math, compared to
74% for native English speakers. Id.
The Ninth Circuit dismissed the evidence of
success, putting these “encouraging” results in a
footnote, 516 F.3d at 1170 n. 38, and claiming that
“the record does not demonstrate that NUSD is
succeeding in rapidly and permanently reclassifying
ELL students, nor on the time it takes to reclassify
students.” 516 F.3d at 1170.
Instead, the lower court simply decried a lack
of resources:
A district in which the majority of ELL
tenth graders fail to meet state achievement
standards while the majority of native English
speakers pass is not one whose performance
demonstrates that the state is adequately
funding ELL programs and so warrants relief
from judgment.
516 F.3d at 1170 (emphasis in the original). Given the
undisputed evidence that graduates of the program
do as well or better than the “majority of English
speakers”, comparing those who haven’t completed
the program is premature at best. Otherwise, the
lower court would be demanding instantaneous
results.
Leaving aside the comparison between
different groups, this conclusion doesn’t seem to
comport with the record. Pet. App., at 363a-366a
33
(Nogales Unified School District schools rank high on
Arizona test scores); Brief for Petitioners
(“Legislature’s Br.”) at 22, 45-46 (describing new
programs and resources in Nogales schools), 48
(describing ELL performance on tests).
Again, the Ninth Circuit’s position may be
dictated by its misunderstanding and
mischaracterization of the Castaneda test. The
opinion below described the third prong as: “Third,
even if theory is sound and resources are adequate,
the program must be borne out by practical results.”
516 F.3d at 1146.
This is not an accurate description, as it
substitutes “resources are adequate” for what the
Castaneda test actually measures:
Finally, a determination that a school
system has adopted a sound program for
alleviating the language barriers impeding the
educational progress of some of its students
and made bona fide efforts to make the
program work does not necessarily end the
court’s inquiry into the appropriateness of the
system's actions. If a school’s program,
although premised on a legitimate educational
theory and implemented through the use of
adequate techniques, fails, after being
employed for a period of time sufficient to give
the plan a legitimate trial, to produce results
indicating that the language barriers
confronting students are actually being
overcome, that program may, at that point, no
longer constitute appropriate action as far as
that school is concerned.
648 F.2d at 1010 (emphasis added).
34
The Castaneda results test does not include the
word “resources,” nor does it measure whether
“resources are adequate.” Instead it measures
whether Arizona has “made bona fide efforts to make
the program work,” and whether, after a reasonable
period of time, the program was “implemented
through the use of adequate techniques.” Not
adequate “resources,” but “adequate techniques.”
And the essential test, described twice in one
paragraph, is whether Arizona had made “bona fide
efforts to make the program work.”
The last sentence of the Castaneda third prong
was not mentioned by the Ninth Circuit: “We do not
believe Congress intended that under § 1703(f) a
school would be free to persist in a policy which,
although it may have been ‘appropriate’ when
adopted, in the sense that there were sound
expectations for success and bona fide efforts to make
the program work, has, in practice, proved a failure.”
648 F.2d at 1010 (emphasis added).
The Castaneda court sought “bona fide efforts”
to ensure that children who are limited English
proficient, including immigrant children and youth,
attain English proficiency, develop high levels of
academic attainment in English, and meet the same
challenging State academic content and student
academic achievement standards as all children are
expected to meet. This is the same standard set by
the NCLB. This is also what language-minority
parents have sought for many years, and, by the
available evidence, this is what Arizona has
apparently provided.
The lower court’s failure to understand and
apply the Castaneda test threatens to confuse schools
and parents about the requirements for teaching
35
English Language Learners, leading to the same sort
of pedagogical morass that followed the Lau
Guidelines. This Court should not permit the decision
below to undermine the needs of English Language
Learners.

II. THE DECISION BELOW DISTORTS AND
MISAPPLIES THE RELATIONSHIP BETWEEN
THE EEOA AND THE NCLB.
The decision below similarly failed to
understand the evolution of federal policy from the
EEOA to Title III of the NCLB. The EEOA required
“appropriate means to overcome language barriers.”
20 U.S.C. § 1703(f). The later-passed Title III of the
NCLB sets specific federal policy for what “means”
are “appropriate” enough to deserve federal funding.
The Castaneda test is the long-standing
measure of whether the EEOA is being satisfied. If
the three goals of the NCLB are the same as the three
prongs of the Castaneda test, then satisfying the
NCLB means satisfying the EEOA. If that is true, the
Ninth Circuit’s opinion is fatally flawed.

A. The Goals of the EEOA and Title III of
the NCLB Are The Same:
The Castaneda test requires, as shown supra, a
recognized theory, appropriate implementation, and
measurable results:
We also laid down a three-step test for
compliance with section 1703(f): Is the
program based on an educational theory
recognized as sound or at least as a legitimate
experimental strategy by some of the experts
in the field? Is it reasonably calculated to
36
implement that theory? Has it, after being
used for a time sufficient to afford it a
legitimate trial, produced satisfactory results?
United States v. Texas, 680 F.2d at 371.
Title III of the No Child Left Behind Act sets
three goals, which are essentially the same as the
three prongs of the Castaneda test:
�� scientifically-based theory;
�� adequate implementation, including teacher
development; and
�� measurable results.
School districts must use Title III funds to
provide high-quality language instruction
programs that are based on scientifically based
research, and that have demonstrated that
they are effective in increasing English
proficiency and student achievement.
Districts are required to provide highquality
professional development to classroom
teachers, principals, administrators, and other
school or community-based organizational
personnel in order to improve the instruction
and assessment of limited English proficient
students.
Districts are held accountable for making
adequate yearly progress as described in Title I
and meeting all annual achievement objectives.
NCLB Desktop Reference, supra.

B. Title III Is An Individually-Focused
Civil Rights Law:
The court below dismissed the requirements of
Title III as only applicable to schools, and not
children:
37
The EEOA is just such a rights-enforcing
law. It requires states “to ensure that needs of
students with limited English language
proficiency are addressed,” Idaho Migrant
Council v. Bd. Of Educ., 647 F.2d 69, 71 (9th
Circ. 1981), by requiring them to remove
barriers to equal participation in educational
programs now rather than later, and it
provides students with a right of action to
enable them to enforce their rights, see, 20
U.S.C. § 1706 . . . The EEOA’s concerns, in
other words, lie fundamentally with the
current rights of individual students, while
NCLB seeks gradually to improve their
schools.
516 F.3d at 1173.
The Ninth Circuit has it backwards. To a
student trapped in an ineffective bilingual education
program, like Rita Montero’s son, Camilo, the NCLB
is a civil rights law, “requir[ing] states ‘to ensure that
needs of students with limited English language
proficiency are addressed,’ . . . by requiring them to
remove barriers to equal participation in educational
programs now rather than later.” 516 F.3d at 1173.
The sponsors of Title III explicitly thought
their changes would aid individual students in
achieving equality in American society:
Our school system should not isolate kids
and not allow them to learn English. So we
change the bilingual program so now the stress
in bilingual education is going to be teaching
kids to learn English so that they can compete
in our world, compete in America, and have a
shot at the American opportunity.
38
147 Cong. Rec. S13328 (Dec. 17, 2001)(Statement of
Sen. Gregg).
In addition, Title III focuses on individual
students. In March 2006, Irene Moreno, head of the
English Acquisition United for the Arizona
Department of Education described the four
strategies she believed accounted for the
demonstrated success of Nogales schools:
small Structured English Immersion classes
that emphasized English language
development;
intervention strategies to assist individual
students who needed special attention;
tutoring before, during and after school; and
software-based evaluation providing immediate
feedback on individual students’ needs.
Superintendent’s Br., at 26. These strategies, which
satisfy Title III, are focused on the “current rights of
individual students” rather than “seek[ing] to
gradually improve their schools.” 516 F.3d at 1173.

C. The Ninth Circuit’s Approach Could
Harm, Not Help, Children:
The Ninth Circuit overlooked one major
purpose of Title III: to insure accountability on the
basis of measurable results. One reason for this
emphasis is that, under the old bilingual education
programs, children were kept in these ineffective
programs far longer than necessary. See, e.g., H.R.
Rep. 107-63, Pt. 1, at 277.
If implemented, the Ninth Circuit’s “input”
approach, measured by dollars spent per English
Language Learner in these programs, could lead to
the old result. Schools would have an incentive to
39
keep students in the programs longer than necessary,
in order to attract more education funding. That
would violate the purposes of both the EEOA and
Title III of the NCLB: to teach children English and
move them into parity with other students as quickly
as possible.
Ironically, this perverse incentive to retain
ELLs in special programs longer would run counter
to the Ninth Circuit’s principal criticism, noted
above, that Arizona’s programs do not “reclassify”
students quickly enough. 516 F.3d at 1170 n. 38. Yet,
history suggests that this is the likely result of the
Ninth Circuit’s own “put more money in” approach.
The Ninth Circuit’s failure to understand the
evolution of ELL education led it to a failure of
analysis. This Court must understand the evolution,
and the consequences, to see how these many
disparate factors have come together to produce a
success, not a failure, in Arizona.

CONCLUSION
For the foregoing reasons, Amici Curiae
respectfully request this Court to reverse the decision
below.
BARNABY W. ZALL
Counsel of Record for Amici Curiae
Weinberg & Jacobs, LLP
11300 Rockville Pike, #1200
Rockville, MD 20852
(301) 231-6943