Dahlia and Walter—
A quiet, no-opinion day, thank heavens, because there's still lots to process and ponder from earlier this week. Yesterday, I mentioned that the strip-search decision gave me a feeling of nostalgia for the good old days when school administrators suspected students of nothing more serious than smoking in the bathroom. Well, the court's 5-4 decision in Horne v. Flores, the English-language-learners' funding case, gave me a feeling of nostalgia as well, for quite a different reason.
Beneath the surface of the two lengthy and dense opinions (Alito for the majority at 36 pages and Breyer for the dissenters at 46, and he announced his dissent from the bench), an old battle is being waged here over the appropriate role of the federal courts in directing state and local governments on how to conduct their traditional functions of running schools, prison systems, etc. This is the "institutional reform litigation" that the majority takes as its target, and it is a label with a great deal of resonance. Breyer argues, persuasively in my view, that this label is a mischaracterization for what happened in this case, in which the federal courts found that Arizona was out of compliance not with the general constitutional principles embodied in the Eighth or 14th amendments but with the mandate of a specific federal statute, the Equal Education Opportunity Act of 1974. And as this litigation over the appropriate level of funding for English-language instruction bounced around the lower courts in its prolonged remedy phase, the question became whether the formula that the Arizona Legislature settled on for paying for English-language instruction violated a subsequent federal statute, the No Child Left Behind Act.
There are obvious federalism implications, to be sure. Justice Alito further suggests in his first footnote that the 1974 law may have been beyond Congress' authority under today's "congruence and proportionality" standard of City of Boerne v. Flores (a footnote that made me nostalgic for the good old days when Congress could carry out its enforcement authority under Section 5 of the 14th Amendment as it saw fit). But this whole dispute is anchored in federal statutory law. The plaintiffs were asking for their statutory entitlement—not for some creative new right, such as the right to have a school funding formula divorced from the local property tax and equalized across districts. The latter is the claim that the Supreme Court rejected in the 1973 case San Antonio v. Rodriguez, a high watermark of institutional reform litigation. (I discuss that case in a recently published article in Constitutional Commentary, "What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection.")
The days of institutional reform litigation are long past. Those battles were fought and won by conservatives back in the days when Justice Alito and Chief Justice Roberts were law clerks and young lawyers in the Reagan administration. In fact, shutting the federal courthouse doors to institutional reform cases, and extracting the courts from such cases that they were already in, was a signal part of the Reagan-era legal counterrevolution. By shoehorning Horne into the institutional-reform box, today's majority is trying to widen the no-federal-judges zone to encompass an area where federal courts had been assumed to be free to enforce federal law. (It's worth noting that both the state of Arizona and the federal government were in this case on the plaintiffs' side—the petition was filed by the state education commissioner and the state legislature, not the state itself.)
Justice Breyer may not be an institutional reformer himself, but he cut his eye teeth back in the era when federal courts were assumed to have an appropriate role in cases of this sort, and he understands what game is afoot here. I think that explains the passion behind his dissent. If you think I'm overinterpreting the decision, take a look at the petitioners' amici, including the Eagle Forum, the Pacific Legal Foundation, and other groups that are addressing the big picture rather than the numbing procedural details of this case. "By exercising their political preferences over the law, the lower courts usurped state and local authority over education," says Phyllis Schlafley's Eagle Forum.
I'll be back later with some updated statistics and further musings on yesterday's opinions.