Not surprisingly money is at the core of this dispute. Arizona produced a statewide educational budget that did provide funds for ELL instruction, but at a significantly lower level than what was needed to achieve meaningful results. The District Court and Court of Appeals agreed that the plan for ELL was sound, but after extensive hearings held that because of inadequate resources the state had violated the Equal Educational Opportunities Act. Neither court specified a particular amount that the state would have to produce in order to comply with the law since the statute focuses on the relationship between sound planning, trained personnel, and an effective method of implementing the plan. The lower court also left it up to the State “to recommend [to the legislature] the level of funding necessary to support the programs that it [the state educational planners] determined to be the most effective.”

But the conservative majority of the Supreme Court saw this as a District Court judge micromanaging the states affairs, particularly its education budget. They also saw this as “judicial over reaching” since although the case originated in a single school district, the eventual court order covered all the districts in the state. Ultimately the decision in this case was based on an interpretation of a complex procedural rule concerning the standards for changing a federal court order.

Nevertheless the raw politics at play in Flores were obvious. The funding for non-English speaking students in public schools is linked to the political battles over immigration reform and the states obligation to provide social services to all its residents. Students with poor language skills face many obstacles, including a high drop out rate and ELL plans are designed to address that issue by mainstreaming non-English speaking students as rapidly as possible. While well meaning educators in Arizona might have been trying to do the right thing, their efforts were undercut by the unwillingness of the legislature to provide the mostly Mexican American students in Nogales with the resources needed to succeed.

Despite this setback, the case was not a complete loss by the students, they will get a re-hearing based on the new rule requiring the court to look at “the totality of the circumstances” affecting ELL programs. But with funds for schools being cut all over the country it’s hard to imagine that consideration of the ELL program under the courts new rule will produce the kind of equitable funding that the lower court had ordered. It’s ironic that after Flores Republican Senators continue to question whether Judge Sotomayor will turn out to be “an activist” judge on the Supreme Court. After this term it is clear that it is the courts conservative majority that has taken on the mantle of judicial activism.