                                                Volume 1 of 2

                   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 a parent of
Mario Rzeslawski, minor child,
                 Plaintiffs-Appellees,
                  v.
STATE OF ARIZONA and the ARIZONA
STATE BOARD OF EDUCATION, and
                                               No. 07-15603
                                         
its individual members in their
official capacities,                             D.C. No.
              Defendants-Appellees,          CV-92-00596-RCC
THOMAS C. HORNE, Superintendent
of Public Instruction,
               Defendant-Appellant,
                 and
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,
                          Intervenors.
                                         




                              1801
1802                    FLORES v. HORNE



MIRIAM FLORES, individually and          
as a parent of Miriam Flores,
minor child; ROSA RZESLAWSKI,
individually and as a parent of
Mario Rzeslawski, minor child,
                 Plaintiffs-Appellees,
                  v.
SPEAKER OF THE ARIZONA HOUSE OF                No. 07-15605
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,                             D.C. No.
                                             CV-92-00596-RCC
             Intervenors-Appellants,
                                                OPINION
                 and
STATE OF ARIZONA and the ARIZONA
STATE BOARD OF EDUCATION, and
its individual members in their
official capacities, THOMAS C.
HORNE, Superintendent of Public
Instruction,
                          Defendants.
                                         
        Appeal from the United States District Court
                 for the District of Arizona
         Raner C. Collins, District Judge, Presiding

                  Argued and Submitted
        December 4, 2007—San Francisco, California

                   Filed February 22, 2008

       Before: Betty B. Fletcher, Marsha S. Berzon, and
            Johnnie B. Rawlinson, Circuit Judges.

                  Opinion by Judge Berzon
1806                   FLORES v. HORNE


                         COUNSEL

David J. Cantelme (argued) and D. Aaron Brown, of Can-
telme & Brown, P.L.C., for intervenors-appellants Speaker of
the Arizona House of Representatives and President of the
Arizona Senate.

Eric J. Bistrow (argued), of Burch & Cracchiolo, P.A., for
defendant-appellant Thomas C. Horne, Superintendent of
Public Instruction of the State of Arizona.

Timothy M. Hogan (argued) and Joy E. Herr-Cardillo, of the
Arizona Center for Law in the Public Interest, for plaintiffs-
appellees Miriam Flores et al.

José A. Cárdenas (argued), Lynne C. Adams, David D. Gar-
ner, and Kimberly A. Demarchi, of Lewis & Roca LLP, and
Terry Goddard, Attorney General of the State of Arizona,
Mary O’Grady, Solicitor General of the State of Arizona, and
Susan P. Segal, Assistant Attorney General of the State of
Arizona, for defendants-appellees State of Arizona and Ari-
zona State Board of Education.
                            FLORES v. HORNE                           1807
John C. Richardson and Shefali Milczarek-Desai, of DeCon-
cini McDonald Yetwin & Lacy, P.C., for amicus curiae Ari-
zona School Boards Association, Tucson Unified School
District, Mesa Unified School District, Sunnyside Unified
School District, and Phoenix Union High School District.


                               OPINION

BERZON, Circuit Judge:

   On January 24, 2000, the District Court for the District of
Arizona ruled that Arizona was violating the Equal Educa-
tional Opportunity Act of 1974, 20 U.S.C. §§ 1701 et seq.
(“EEOA”), because the state’s funding for English language
instruction for non-native speakers was “not reasonably calcu-
lated to effectively implement the . . . educational theory
which” the state had approved. Flores v. Arizona, 172 F.
Supp.2d 1225, 1239 (“Flores II”) (D. Ariz. 2000). Eight years
later, Arizona has still not satisfied the terms of that judgment,
nor complied with the bulk of the injunctions entered against
it as a result of that ruling. Although Arizona and the Arizona
Board of Education acknowledge that the state remains out of
compliance and do not seek to vacate the judgment or the
injunctive orders, the Arizona Superintendent of Public
Instruction, the Speaker of the Arizona House of Representa-
tives, and the President of the Arizona Senate moved for relief
from judgment.1 We affirm the district court’s denial of relief.
  1
    The Arizona School Boards Association, Tucson Unified School Dis-
trict, Mesa Unified School District, Sunnyside Unified School District,
and Phoenix Union High School District filed an amicus brief supporting
Arizona, the Board of Education, and the plaintiffs. They emphasize the
many pedagogical challenges districts face in attempting to educate stu-
dents who are not fluent in English and the substantial resource costs those
hurdles create. In their view, “Arizona school districts have performed an
admirable job of educating [English language learner] students despite
being grossly under-funded by the State. School districts are already
1808                         FLORES v. HORNE
                        I.   BACKGROUND

   It has been more than fifteen years since the initial com-
plaint in this action was filed and eight years since the final
judgment on liability issued. The post-judgment relief process
has been arduous, with Arizona moving forward, to the con-
siderable degree it has, largely in response to a consent decree
resulting from this litigation and a series of post judgment
relief orders. Over this long period, local and national condi-
tions have shifted in significant ways. The moving parties
contend they have done so sufficiently as to warrant relief
from judgment, even though Arizona has never complied with
the specific terms of the present injunction against it. Explain-
ing why that argument fails requires rehearsing the history of
this case. We do so here, beginning with the complaint and
Declaratory Judgment, moving through the intermediate post-
judgment orders, and then discussing in detail the proceedings
leading up to this case, which were triggered by a new state
funding statute and resulted in an eight-day evidentiary hear-
ing.

              A.    The EEOA and the Complaint

   Nogales is a small city along the Mexican border in south-
ern Arizona. In 1992, when this suit began, the population of
the Nogales Unified School District (“NUSD”) was almost
entirely Hispanic; that is still so. Most of its approximately
6,000 students come from homes where Spanish is the first
language. These students are distributed among six elemen-
tary schools, two middle schools, one high school, and one

stretched to their limits both economically and in terms of morale and per-
sonnel. They will continue to struggle to provide quality [programs for
such students] without additional assistance and resources from the State.”
They further note that “Arizona school districts cannot divert general edu-
cation funding to . . . programs [for such students] without seriously crip-
pling school districts’ ability to provide all other aspects of a public
education.”
                       FLORES v. HORNE                       1809
alternative high school. The great majority of the district’s
students are classified as English language learners (“ELL”)
for at least some portion of their academic careers. In 2006,
for instance, thirty percent of the students were in ELL pro-
grams and an additional sixty percent had been in such pro-
grams. Although Arizona’s theory of ELL instruction has
changed over the years, the enormous importance of such pro-
grams to students and parents in Nogales has not.

   ELL students and parents in Nogales (we refer to them as
“Flores,” after class representative Miriam Flores), were faced
with serious inadequacies in ELL instruction and sued to cor-
rect them. The suit proceeded as a class action, with the class
defined as “all minority ‘at risk’ and limited English profi-
cient children now or hereafter, enrolled in Nogales Unified
School District . . . , as well as their parents and guardians.”

   Flores’ second amended complaint, filed November 29,
1996, primarily alleged that the “State has failed to provide
financial and other resources necessary for adequate imple-
mentation of mandatory [ELL] programs by public school dis-
tricts in Arizona,” because “[t]he cost of [ELL] instruction
complying with federally prescribed state mandates far
exceeds the only financial assistance the State theoretically
provides school districts for such purposes.” As a result, Flo-
res contended, Arizona, the state Superintendent, and the state
Board of Education violated the EEOA.

  The relevant portion of the EEOA provides:

    No State shall deny equal educational opportunity to
    an individual on account of his or her race, color,
    sex, or national origin, 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.
1810                        FLORES v. HORNE
20 U.S.C. § 1703. This provision of the EEOA was intended
to remedy the linguistic discrimination identified by Lau v.
Nichols, 414 U.S. 563 (1974), in which the Supreme Court
held that failing to provide for the needs of non-English
speaking students “is to make a mockery of public education,”
rendering classroom experiences for these children “wholly
incomprehensible and in no way meaningful.” Id. at 566; see
also Castaneda v. Pickard, 648 F.2d 989, 1008 (5th Cir.
1981) (noting that the EEOA codifies the “essential holding
of Lau, i.e., that schools are not free to ignore the need of lim-
ited English speaking children for language assistance to
enable them to participate in the instructional program of the
district.”).2

   Flores alleged that such needs were not being met in Ari-
zona. She charged Arizona with “administer[ing] a school
finance scheme that is just sufficient to let less distressed, pre-
dominantly Anglo districts impart State-mandated essential
skills to their mainstream student bodies . . . but that does not
and will not enable NUSD or similarly situated districts to
impart the same State-mandated essential skills to decisively
minority enrollments requiring expanded compensatory pro-
grams, smaller class sizes and further efforts of like nature in
order to acquire them.”

   Flores’ complaint was premised on the EEOA analytic
framework provided by the Fifth Circuit in Castaneda. See
648 F.2d at 1009-10; see also Gomez v. Illinois State Bd. of
Educ., 811 F.2d 1030, 1041-42 (7th Cir. 1987) (applying the
Castaneda analysis). The Castaneda framework is three-fold:
  2
    The EEOA contains an express private right of action, 20 U.S.C.
§ 1706, under which this suit proceeds. See Flores v. Arizona, 48 F. Supp.
2d 937, 940 (“Flores I”) (D. Ariz. 1999) (holding that the plaintiffs could
proceed under § 1706). We have held that § 1706 abrogates state sover-
eign immunity. Los Angeles NAACP v. Los Angeles Unified School Dist.,
714 F.2d 946, 950-51 (9th Cir. 1983); see also Gomez v. Illinois State Bd.
of Educ., 811 F.2d 1030, 1037-38 (7th Cir. 1987) (same). Arizona does not
contend otherwise.
                           FLORES v. HORNE                         1811
First, courts must be satisfied that the “school system is purs-
[uing] a program informed by an educational theory recog-
nized 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 the
school.” Id. at 1010. There must, in other words, be sufficient
“practices, resources and personnel . . . to transform the the-
ory into reality.” Id. Third, even if theory is sound and
resources are adequate, the program must be borne out by
practical results. Id. 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.

  B.    The Declaratory Judgment and Arizona’s School
                     Funding System

    After lengthy pre-trial proceedings and a bench trial, the
district court on January 24, 2000, held that Arizona was in
violation of the EEOA and granted declaratory judgment in
Flores’ favor.3 See Flores II, 172 F. Supp. 2d at 1239. Of the
many issues raised in Flores’ complaint, only one EEOA issue
was decided by the court: “[W]hether or not Defendants’ [sic]
adequately fund and oversee the Lau program in NUSD
. . . .”4 Id. at 1226. The rest of the EEOA violations originally
alleged, including failures adequately to evaluate and monitor
ELL students, to provide tutoring and other forms of compen-
satory instruction, and to design successful ELL program-
ming, were covered by a consent decree approved by the
district court on July 31, 2000. See id.
  3
     The earlier proceedings, which involved changes of counsel on both
sides and various other procedural hurdles and delays, are summarized in
Flores I, 48 F. Supp. 2d at 943-46.
   4
     Because 20 U.S.C. § 1703(f) codifies the central holding of Lau, ELL
programs are sometimes referred to as “Lau programs.”
1812                        FLORES v. HORNE
   The particulars of Arizona’s school funding system are
therefore at the heart of this case. We pause to describe them
here.

   Consistent with Article XI, § 1 of the Arizona Constitution,
school funding in Arizona is designed to be essentially equal
across districts, despite differences in local property values.
See Roosevelt Elementary Sch. Dist. No. 66 v. Bishop, 877
P.2d 806, 811-16 (“Roosevelt I”) (Ariz. 1994).5 To ensure
equality, the state calculates the maximum support level a dis-
trict may spend, referred to as the revenue control limit, see
ARIZ. REV. STAT. § 15-947, and then pays the difference
between that level and the amount the district can raise by
levying a state-mandated tax rate against property in its area,
see ARIZ. REV. STAT. § 15-971. Thus, regardless of the local
tax base, the amount each district can spend per pupil is
roughly equalized statewide, by first setting a maximum
spending level and then making up the gap between local tax
revenues and that level with state funds.6

   The revenue control limit, and hence the district support
level, is calculated by adding together funds designated for
transporting students to school, see ARIZ. REV. STAT. § 15-
945, and “base support” funds, see ARIZ. REV. STAT. §§ 15-
943, 944. It is these base funds with which we are primarily
concerned.7 These funds are unrestricted — school districts
may spend them essentially as needed — and do not appear
to have been calibrated “to any minimum amount necessary
  5
     Article XI, § 1 provides in pertinent part that “[t]he Legislature shall
enact such laws as shall provide for the establishment and maintenance of
a general and uniform public school system.” (Emphasis added).
   6
     School districts may also try to pass ballot measures, called “over-
rides,” to raise county taxes and so secure funds above the revenue control
limit. See ARIZ. REV. STAT. § 15-481.
   7
     These funds, along with other federal, state and county funds, includ-
ing funds provided to support ELL students, are sometimes referred to as
“maintenance and operation” or “M & O” funds. See Savage v. Glendale
Union High Sch. Dist. No. 205, 343 F.3d 1036, 1041 (9th Cir. 2003).
                             FLORES v. HORNE                            1813
for a basic education.” See Roosevelt I, 877 P.2d at 810.
Nonetheless, they represent the core funding provided for
such an education.

   Funding allocations are made by using a weighting system:
A per pupil weighted amount of funding is calculated by mul-
tiplying a “support level weight” (which varies by district
type and size and by the student’s grade level) by a statewide
baseline amount. See ARIZ. REV. STAT. §§ 15-943(1)(a)-(2)(a)
(weights), 15-901(B)(2) (baseline). For the 2006-2007 school
year, for instance, the statewide baseline amount was
$3,133.53. ARIZ. REV. STAT. § 15-901(B)(2)(a). The support
level weight for a typical student in grade eight in most school
districts is 1.158, ARIZ. REV. STAT. § 15-943(2)(a), so a district
could spend $3,628.638 to support that student in 2006-2007.

   Not all students are “typical,” of course. Some have special
needs which impose additional, incremental costs. ELL stu-
dents, for example, naturally require additional support. Ari-
zona’s funding formula provides for these incremental costs
through an additional “Group B” weighting system which
adds additional funding for various student groups, including
ELL students. See ARIZ. REV. STAT. § 15-943(2)(b). In 2006-
07, for instance, the Group B weight for ELL students was
0.115, so a district received an additional $360.369 to cover
the ELL component of that student’s education, on top of the
base level $3,628.63 provided for each pupil.

   The core assumption of Arizona’s funding formula, then, is
that ELL students impose incremental costs on a district,
above the base level funding allocation. So, while all of the
funding (base level and Group B weights) is allocated to the
district as a block grant, a district that spends more on ELL
  8
     This figure is the product of the support level weight (1.158) multiplied
by the baseline amount ($3,133.53).
   9
     This figure is the product of the Group B weight (0.115) multiplied by
the baseline amount ($3,133.53).
1814                   FLORES v. HORNE
incremental costs than allocated is necessarily spending less
on basic educational needs per pupil.

  Taking this framework as a given, the district court in its
2000 declaratory judgment opinion inquired whether Arizo-
na’s funding specifically for ELL students — the Group B
weights — actually covered the incremental costs of ELL pro-
gramming. The court found that it did not. Flores II, 172 F.
Supp.2d at 1239.

   This finding was well supported. Arizona had conducted a
cost study in 1987-88 which determined that school districts
were spending about $450 (in 1988 dollars, unadjusted for
inflation) per ELL student. Id. at 1228. This study was seri-
ously methodologically flawed; it did not, for instance, deter-
mine what districts should be spending. But even by the
study’s flawed measure, Arizona’s ELL funding was inade-
quate on a statewide basis. Twelve years after the study, the
district court found, Arizona’s ELL Group B weight, 0.60,
provided only about $150 per student. Id. at 1238-39.

  That this support was inadequate to live up to Arizona’s
EEOA obligations to its school districts and their students was
supported by several examples of resource-linked ELL pro-
gram deficiencies in NUSD, including:

    1) too many students in a class room,

    2) not enough class rooms,

    3) not enough qualified teachers, including teachers
    to teach [English as a Second Language] and bilin-
    gual teachers to teach content area studies,

    4) not enough teacher aids,

    5) an inadequate tutoring program, and
                            FLORES v. HORNE                           1815
       6) insufficient teaching materials for both [English
       as a Second Language] and content area courses.

Id. at 1239.

   In short, Arizona’s “minimum base level for funding Lau
programs [was] arbitrary and capricious and [bore] no relation
to the actual funding needed to ensure that [ELL] students in
NUSD are achieving mastery of its specified ‘essential
skills.’ ” Id. In particular, the court held, the ELL Group B
weight appropriation was “not reasonably calculated to effec-
tively implement” the ELL programs, and Arizona had, there-
fore, “failed to follow through with . . . resources . . .
necessary to transform theory into reality,” as the Castaneda
framework requires.10 Id.; see Castaneda, 648 F.2d at 1010.

C.     Post-Judgment Relief and Arizona’s ELL Programs

   The judgment was not appealed. Nonetheless, Arizona did
not take action to eliminate the violations found in the Declar-
atory Judgment. Instead, the state legislature defeated several
attempts to commission an adequate study of ELL costs that
would enable it to set appropriate ELL funding levels.

   In October of 2000, ten months after the issuance of the
Declaratory Judgment, the district court ordered Arizona to
“prepare a cost study to establish the proper appropriation to
effectively implement” ELL programs. Flores v. Arizona, 160
F. Supp. 2d 1043, 1047 (“Flores III”) (D. Ariz. 2000). Such
a study was critical, the court indicated, because “as a matter
of law the State’s minimum base level for funding Lau pro-
  10
    The district court was aware that base support funds could be diverted
to ELL students if the target Group B weight funding is inadequate and
a district so chooses. Flores II, 172 F. Supp. 2d at 1229. Because base
level funds support typical students, the district court focused on the
Group B weights, see id. at 1238, which are, again, the amount that Ari-
zona projects will be necessary to spend in addition to the base level funds
to meet the special needs of ELL students.
1816                   FLORES v. HORNE
grams bears no relation to the actual funding needed to ensure
that [ELL] students are achieving mastery of the State’s speci-
fied ‘essential skills.’ ” Id. at 1044. This injunction was not
appealed either.

   Shortly after the injunction issued, in November 2000, Ari-
zona voters approved two propositions that altered Arizona’s
school funding and ELL programs. 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.” ARIZ. REV. STAT. § 15-751(5). Proposition 301
increased school funding generally in Arizona through a sales
tax increase. See ARIZ. REV. STAT. § 15-901.01. Prop. 301
funding is available for many purposes but is not directed spe-
cifically towards ELL programs. See ARIZ. REV. STAT. § 42-
5029(E)(1)-(10).

   Meanwhile, as ordered, Arizona commissioned a cost study
(we refer to it as the “SjobergEvashnek study,” after the con-
sulting group that largely directed it). The final study, how-
ever, proved to be a disappointment. It did not estimate the
incremental costs of EEOA compliance, but instead reported
on what several districts nationwide were spending. The study
reported widely variable incremental costs for various ELL
programs, ranging from about $185 to $3,000 per ELL stu-
dent. It also found that NUSD was spending $331.60 in incre-
mental costs per pupil, while noting that the NUSD program
might not “fully address the unique and extraordinary needs
of [NUSD’s ELL] population.”

   Some additional guidance came from a study conducted by
the staff of several Democratic members of the legislature
(the “Staffers’ study”), also released in 2001. Aggregating
data from other states and from Arizona, the Staffers’ study
estimated $1527 in incremental costs per student would be
required for EEOA compliant programs — a number, it noted,
                         FLORES v. HORNE                      1817
which was generally consistent with the experience of other
states.

   Arizona did not act on either study. After Flores again
moved for post-judgment relief, the court, on June 25, 2001,
restated its holding that “as a matter of law the State’s mini-
mum base level for funding Lau programs” was not rationally
linked to “funding needed to ensure that [ELL] students are
achieving mastery of the State’s specified ‘essential skills.’ ”
Flores v. Arizona, No. CV-92-596, 2001 WL 1028369 at *1
(“Flores IV”) (D. Ariz. 2001). It ordered Arizona to provide
funding that “shall bear a rational relationship to the actual
funding needed” by no later than January 31, 2002. Id. at *2.
This injunction, too, was not appealed.

   The legislature responded by enacting HB 2010 on Decem-
ber 19, 2001. That law increased the ELL Group B weight to
0.115, which generated, at that time, about $339.61 per stu-
dent, roughly the amount that NUSD was recorded as spend-
ing in the SjobergEvashnek study. HB 2010 also provided
funds for a more comprehensive cost study than had been
done previously. Contending that HB 2010 was not adequate,
Flores again moved for post-judgment relief.

   Initially, the district court agreed with Flores. It held, in an
order issued on April 8, 2002, that the $339.61 in base level
funding was not adequate because it was based on NUSD’s
actual spending (as of 2001), which generated “the very pro-
gram that this Court’s Declaratory Judgment held to be defi-
cient.” Flores v. Arizona, No. CV-92-596 at 3 (“Flores V”)
(D. Ariz. 2002). A few months later, however, the court
reconsidered, on Arizona’s motion, and held that HB 2010’s
funding levels were adequate “as an interim measure pending
further study and review,” including the cost study funded by
HB 2010. Flores v. Arizona, No. CV-92-596 at 1-2 (“Flores
1818                      FLORES v. HORNE
VI”) (D. Ariz. June 12, 2002). The order was not appealed,
and three years passed.11

   Again, the legislature gathered some data and, again, it did
not act upon the data it received. As part of HB 2010, the leg-
islature commissioned a detailed cost study from the National
Conference of State Legislatures (the “NCSL study”). NCSL
submitted a first draft in August 2004 and a second draft in
February 2005, upon which we rely. The study used two
approaches: A survey sent to Arizona school districts to deter-
mine then-current ELL program spending and two expert pan-
els, one of state and one of national experts, convened to
estimate the costs of EEOA-compliant ELL programs.

   The school district survey was hampered by a small
response rate — only seven of the sixteen surveyed districts
provided data. NCSL noted the problem but analyzed the
available data, which showed an average expenditure of
$669.35 per pupil in incremental costs. NCSL cautioned that
this data was limited and of questionable quality, noting that
the cost figure might be “somewhat understated.”

   Expert estimates of appropriate (rather than actual) spend-
ing were significantly higher. The national expert panel rec-
ommended a range of spending, based on the degree of
students’ need for help and grade level from $1,026 per pupil
for low-need students at the high school level to $2,571 for
high-need elementary school students. The state expert panel
recommended spending $1,785 in per pupil incremental costs
in grades K-2 and $1,447 in grades 3-12.
   11
      Among the events of those years was another general school funding
increase. In November 2002, Arizona voters approved Proposition 202,
which dedicated a portion of the state’s share of Indian casino gambling
proceeds to a school improvement fund for teacher compensation, class
size reduction, dropout prevention, and instructional improvement pro-
grams. See ARIZ. REV. STAT. §§ 5-601.02(H)(3)(b)(I); 15-979. None of
these monies are specifically directed to ELL programs.
                            FLORES v. HORNE                          1819
   Again, Arizona did not act to bring its system into line with
either set of cost data. Again, Flores moved for post-judgment
relief.12 On January 28, 2005, the court set an April 30, 2005
deadline for Arizona to “appropriately and constitutionally
fund[ ] the state’s ELL programs taking into account the
Court’s previous orders.” Flores v. Arizona, No. CV-92-596
at 5 (“Flores VII”) (D. Ariz. 2005).

        D. The First Contempt Order and HB 2064

   Arizona failed to act before the deadline. Flores moved for
sanctions. On December 15, 2005, deploring the fact that
“[t]housands of children who have now been impacted by the
State’s inadequate funding of ELL programs had yet to begin
school when Plaintiffs filed this case,” the court held that Ari-
zona was in civil contempt. Flores v. Arizona, 405 F. Supp.
2d 1112, 1113, 1119 (“Flores VIII”) (D. Ariz. 2005). It set a
deadline of fifteen days after the start of the 2006 legislative
session for compliance with its order, and imposed a schedule
of fines that would begin to accrue if Arizona did not act and
that were to be distributed to Arizona schools to support ELL
students. Id. at 1120-21; see also Order re: Distribution of
Fines, No. CV-92-596 (D. Ariz. March 16, 2006).

   Arizona did not enact compliant legislation and accrued
over $20 million in fines. Eventually, in the spring of 2006,
Arizona Governor Janet Napolitano allowed HB 2064, the
legislature’s effort to create a permanent compliant funding
system, to become law without her signature.13

  HB 2064 is consistent with Arizona’s “base costs plus
Group B weights” approach to education funding, but
  12
      Not long before this motion was filed, the litigation was transferred
from Senior District Judge Alfredo C. Marquez, who had handled it from
the outset, to District Judge Raner C. Collins.
   13
      Governor Napolitano’s statement on HB 2064 appears later in this
opinion.
1820                       FLORES v. HORNE
includes some additional ELL funds designed to cover incre-
mental costs above Group B weight levels, although there are
no guaranteed appropriations for these funds. Along with this
funding structure, the statute provides for further statewide
standardization of ELL programs, presumably in part to make
it possible for the state more easily to monitor and assess the
impact and use of allocated funds and the need for additional
funds.

   To drive the standardization process, HB 2064 creates the
“Arizona English language learners task force” within the
state Department of Education. See ARIZ. REV. STAT. § 15-
756.01. The task force is “to develop and adopt research
based models of structured English immersion programs for
use by school districts and charter schools.” Id. at § 15-
756.01(C).14 Each school district and charter school is to
adopt one of the models or request a waiver. See ARIZ. REV.
STAT. § 15-756.02. To aid in implementing the models, HB
2064 also creates an “Office of English language acquisition
services,” which is to develop guidelines for monitoring ELL
students and programs, create teacher training programs, and
provide other forms of technical assistance. See ARIZ. REV.
STAT. §§ 15-756.07, 15-756.08. Finally, the state Board of
Education is charged with developing a structured English
immersion “endorsement” program for use in training and
certifying Arizona’s teachers. See ARIZ. REV. STAT. § 15-
756.09.

   The models, and ELL education generally, are funded by
three mechanisms under HB 2064, representing significant
potential increases in ELL funding but coming with signifi-
cant limitations:

  First, HB 2064 raises the Group B weight for ELL students
  14
     The models are “limited to a regular school year and school day,” id.
at § 15-756.01(E), and do not provide guidance for after-school and sum-
mer school programs.
                           FLORES v. HORNE                        1821
from 0.115 to 0.140, which corresponds to an increase from
about $340 per student to about $450 per student. See HB
2064 § 6, to be codified at ARIZ. REV. STAT. § 15-943(2)(b).15
There is, however, a significant cut-back as well: Unlike ear-
lier Group B weight funding, under HB 2064 Group B “fund-
ing for the same ELL pupil shall not be provided for more
than two fiscal years.” HB 2064 § 6.

   Second, HB 2064 establishes the “Arizona structured
English immersion fund,” which provides supplemental funds
above the Group B weights to implement the models. See
ARIZ. REV. STAT. § 15-756.04. Those funds come, however,
with several restrictions. Like the Group B weights, they are
limited to two years of availability for any one student. ARIZ.
REV. STAT. § 15-756.01(J). And only “incremental costs” of
the programs are funded, which are defined as those “in addi-
tion to the normal costs of conducting programs for English
proficient students,” id. at § 15-756.01(L), and which do not
include “compensatory instruction.” “Compensatory instruc-
tion” consists of “programs in addition to normal classroom
instruction . . . [which] are limited to improving the english
proficiency of current english language learners and pupils
who were english language learners and who have been
reclassified as english proficient within the previous two
years.” ARIZ. REV. STAT. at § 15-756.11(G).

   In addition, the amount of money provided by the struc-
tured English immersion fund is offset by the following fund-
ing sources:

       1. All federal title III monies and any other federal
       monies designated solely for the educational needs
       of english language learners.

       2.   The portion of title I and title II A monies deter-
  15
    As we note below, this increase is not yet in effect.
1822                   FLORES v. HORNE
    mined by the english language learner population as
    a percentage of the qualified population.

    3. The portion of impact aid monies determined by
    the english language learner population as a percent-
    age of the qualified population. A school district or
    charter school shall only apply unexpended impact
    aid monies to english language learner programs
    after it has applied its impact aid monies for other
    allowable uses as permitted by state law.

    4. The portion of [monies the district may levy to
    further desegregation efforts pursuant to ARIZ. REV.
    STAT.] § 15-910 . . . determined by the english lan-
    guage learner population as a percentage of the qual-
    ified population.

    5.   The ELL [Group B] weight . . . .

ARIZ. REV. STAT. § 15-756.01(I)(1)-(5). At the same time, HB
2064 provides that “[m]onies from the fund [are to be used]
. . . to supplement existing programs for english language
learners . . . . [and] shall not be used to supplant available
monies used to pay for the normal costs of conducting pro-
grams for english proficient students.” ARIZ. REV. STAT. § 15-
756.04(F).

   Importantly, there is no guaranteed legislative appropria-
tion for the structured English immersion fund. Instead, after
school districts and charter schools submit budget requests,
the Department of Education is to verify and “collect all . . .
[the] requests and submit them to the [Arizona] legislature for
funding.”ARIZ. REV. STAT. § 15-756.03(C). The legislature is
not required to appropriate any monies to fund such requests.

   Third, HB 2064 establishes the “statewide compensatory
instruction fund” to be used for compensatory instruction
only. See ARIZ. REV. STAT. § 15-756.11. These funds, too,
                       FLORES v. HORNE                       1823
come with a caveat: They “shall not be used to supplant any
federal, state or local monies, including desegregation monies
. . . , used for compensatory instruction that [had been] bud-
geted for english language learners as of February 23, 2006.”
Id. at § 15-756.11(E). In other words, the state funds provided
must not replace any funds already in use for the same pur-
pose. The total amount of funding is also limited. Although
the legislature appropriated $10 million for this program for
the 2006-07 fiscal year, no further appropriations are required
by the statute. HB 2064 § 9.

   HB 2064 was for the most part immediately effective.
School districts and charter schools, however, could not adopt
the models until they were developed, which they now have
been. Also, monies for the structured English immersion fund
do not have to be appropriated and to this point have not been.
Most importantly, the provisions associated with the Group B
weight increase, require court approval. In this regard, HB
2064 provides:

    [The Group B weight increase and appropriation to
    fund it, along with the two-year cut-off] do not
    become effective unless the United States District
    [C]ourt for the [D]istrict of Arizona in the case of
    [Flores v. State of Arizona] issues an order that, by
    this act, the state has taken appropriate action to
    establish a program that addresses the orders in the
    case and, at least on an interim basis, the court will
    permit this act to be fully implemented to determine
    whether the resulting ELL plans and available fund-
    ing to implement the plans bear a rational relation-
    ship to the cost of implementing appropriate
    language acquisition programs.

HB 2064 § 15(A).

  Although Governor Napolitano allowed HB 2064 to
become law, she did so without vouching for its compliance
1824                          FLORES v. HORNE
with the 2005 court order or with the Declaratory Judgment.
To the contrary, she announced that she was “convinced that
getting this bill into court now is the most expeditious way
ultimately to bring the state into compliance with federal
law,” and requested that the Attorney General move the court
for expedited consideration of the law.16
  16
    Governor Napolitano’s statement on the matter provides, in relevant
part:
          I received House Bill 2064, related to [ELL] programs. I have
       decided to allow the bill to become law without my signature so
       that we can move this dispute to a different forum and get a rul-
       ing from the Flores Court as to its sufficiency. After nine months
       of meetings and three vetoes, it is time to take this matter to a
       federal judge. I am convinced that getting this bill into court now
       is the most expeditious way ultimately to bring the state into
       compliance with federal law.
       ....
         Although I am allowing House Bill 2064 to become law with-
       out my signature, I do not believe this bill meets either the
       Court’s multiple orders or our existing consent decree. It fails in
       a number of important ways, including but not limited to:
          • Arbitrary Funding Level: there is no reason to believe that
       the funding contained in House Bill 2064 bears any rational rela-
       tionship to the actual cost of implementing a successful language
       acquisition program.
          • Failure to Ensure Academic Accountability: the point of
       teaching children to speak, read and write in English is to allow
       them to succeed academically and to ultimately become contrib-
       uting members of the workforce. This bill cuts off funding to stu-
       dents after two years, regardless of their academic progress and
       does not ensure ELL students would even be able to pass AIMS
       [Arizona’s achievement test].
          • Failure to Determine Program Effectiveness: rather than
       using respected experts to advise the state on best practices and
       the real costs of ELL instruction, House Bill 2064 instead creates
       a system by which political appointees with no required mini-
       mum qualifications make important educational policy decisions.
         • Unwise Creation of a New Bureaucracy and Excess Paper-
       work: the bill adds an extra layer of government and does not
       focus on long-term student success.
                         FLORES v. HORNE                         1825
   E. The First Relief from Judgment Ruling and the
                         Remand

   By this point, six years after the Declaratory Judgment, the
positions of the parties had shifted, with Arizona and the state
Board of Education abandoning their defense of the suit and
largely siding with Flores. As a result, when, on March 3,
2006, the state Attorney General moved on behalf of Arizona
for the court to consider whether HB 2064 satisfied its order,
he was arguing against Arizona’s own law.

   The Superintendent, however, maintained his position and
was joined by the Speaker of the Arizona House of Represen-
tatives and the President of the Arizona Senate as intervenors
(we refer to them as the “Legislative Intervenors”). Later that
March, these parties moved to purge contempt and, in the
alternative, for relief from judgment under Rule 60(b)(5).
Their joint motion was based largely on HB 2064, which, they
contended, “creates a plan for adequate funding of programs
for [ELL students],” and brings Arizona into compliance.

   The district court disagreed, ruling on April 25, 2006, that
HB 2064 does not comply with its orders or with the Declara-
tory Judgment because the “Act does not [bear] any rational
relationship to the cost of providing an ELL program . . . and
it has added new hurdles to the mix.” Flores v. Arizona, No.
CV-92-596 at 3 (“Flores IX”) (D. Ariz. 2006). The court held
the Group B weight increase insufficient, and the two-year
cut-off on most funds irrational. Id. at 7-8. The two new
funds, moreover, were structured in ways that violated federal
law. Id. at 4-7. The Superintendent and Legislative Interve-

      • Violation of Federal Supplanting Laws: the bill requires
   ELL payments to school districts and charter schools to be
   reduced by the amount of federal monies they receive, in viola-
   tion of federal law.
1826                     FLORES v. HORNE
nors appealed both that order and the December 2005 con-
tempt order.

   On August 23, 2006, in an unpublished memorandum dis-
position, this court vacated both orders as well as the obliga-
tion to pay fines. Flores v. Rzeslawski, 204 Fed. App’x. 580
(“Flores X”) (9th Cir. 2006). The court noted that “the land-
scape of educational funding has changed significantly” since
2000 and remanded for the district court to hold “an evidenti-
ary hearing . . . regarding whether changed circumstances
required modification of the original court order or otherwise
had a bearing on the appropriate remedy.” Id. at 582. The
court made clear that it reached none of the other issues in the
case. Id.

               F.    The Evidentiary Hearing

  On remand, the district court held an eight-day hearing in
January 2007. Testimony at the hearing focused on three
broad areas: (1) HB 2064 and other changes in Arizona’s ELL
programming and funding; (2) conditions in NUSD; and (3)
conditions in other school districts statewide. As the evidence
adduced in the hearing is at the core of our inquiry today, we
summarize it in some detail here.

                    1.   Statewide Changes

   As is required by the Flores consent decree, Arizona has
significantly improved its ELL infrastructure. It has also
increased overall school funding and, to a lesser degree, ELL
program-specific funding. Nonetheless, Arizona’s 134,000
ELL students continue to lag behind statewide average test
results for all students.

  The new administrative structure created by HB 2064 aug-
ments Arizona’s efforts to further improve and standardize
ELL programs statewide. The state Department of Education
holds regular seminars and training sessions and has devel-
                            FLORES v. HORNE                            1827
oped monitoring protocols for school districts. State-
developed proficiency standards for ELL students are used to
evaluate programs and to identify problems. Arizona has also
made efforts to standardize the testing used to classify chil-
dren as ELL or English proficient.17 Perhaps most impor-
tantly, after August 31, 2006, all classroom teachers,
supervisors, principals, and superintendents are required to
obtain an endorsement in ELL teaching methods. See ARIZ.
REV. STAT. § 15-756.09; ARIZ. ADMIN. CODE R7-2-613(J).

   Along with these ELL-specific structural changes, Arizona
has increased overall school funding.18 On an inflation-
adjusted statewide basis, including all sources of funding,
support for education has increased from $3,139 per pupil in
2000 to an estimated $3,570 per pupil in 2006. Adding in all
county and local sources, funding has gone from $5,677 per
pupil in 2000 to an estimated $6,412 per pupil in 2006.
Finally, federal funding has increased. In 2000, the federal
government provided an additional $526 per pupil; in 2006,
it provided an estimated $953.19
  17
      Before 2004, Arizona allowed districts to select among four different
tests to decide when to “reclassify” students out of ELL programs into
mainstream classes. Beginning in 2004, Arizona instituted the Stanford
English Language Proficiency Assessment (“SELP”), which was in use
from 2004 through 2006. SELP was generally regarded as too easy to
pass, and reclassification rates increased measurably during its use. Ari-
zona fine-tuned SELP, renaming it the Arizona English Language Learner
Assessment (“AZELLA”), and has been using the new test since the fall
of 2006. The transition from SELP to AZELLA appears to have measur-
ably decreased reclassification rates. As a result of these shifts in testing
methodology, ELL reclassification rates are not easily comparable over
the years.
   18
      Broader state efforts for at-risk children generally benefit some ELL
students. These efforts include several funding streams for tutoring pro-
grams. In one tutoring program, 88% of ELL students were able to raise
their scores by one achievement level in at least one subject area of Arizo-
na’s standardized academic achievement tests; 92% of non-ELL students
in the same program so raised their scores.
   19
      Arizona has also significantly increased spending on school physical
plant needs, largely in response to another class-action suit. See Roosevelt
Elementary Sch. Dist. No. 66 v. Arizona, 74 P.3d 258, 259-263
(“Roosevelt II”) (Ariz. Ct. App. 2003).
1828                       FLORES v. HORNE
   Arizona’s ELL-specific funding increases are associated
with HB 2010 and HB 2064. At the hearing, two important
points concerning HB 2064 emerged: First, none of the
defense witnesses were able to establish what data, if any, the
Group B weights are based upon. The weights do not appear
to have been set with regard to any specific program costs,
known or estimated. Second, Flores’ expert on federal educa-
tional funding statutes, Thomas Fagan, testified that if the fed-
eral government concluded that HB 2064 was in violation of
federal statutes, it could take significant enforcement actions,
including a cut-off of some or all federal education funds.20

   Despite Arizona’s expanded ELL infrastructure and budget,
ELL students still achieve below — and often far below —
state average passage rates on Arizona’s “AIMS” academic
achievement test and fall below the minimum passage rates
Arizona must meet to reach the “annual measurable objec-
tives” required by the No Child Left Behind Act of 2001
(“NCLB”), Pub. L. No.107-110, 115 Stat. 1425, as test results
from the 2004-05 and 2005-06 school years show.21 See 20
U.S.C. § 6842 (federal standards).

   These test results must be viewed with two significant
caveats: First, because AIMS testing was not carried out in
2000, we do not know whether the performance of ELL stu-
dents has improved relative to that time. Second, Arizona has
changed the AIMS test itself, including altering the passing
score, and has twice changed the system it uses for reclassify-
ing ELL students — once at the beginning of the 2004-05
school year, and again at the start of the 2006-07 school year.
Results for those students classified as ELL across those years
are therefore not clearly comparable.
  20
     We discuss these potential violations and their consequences below.
  21
     Standardized tests do not, of course, provide a full measure of a
school’s successes and failures. Educational quality is too complex to be
reflected in a single score. But test scores do provide us with at least a
rough sense of relative performance, and so are useful here.
                          FLORES v. HORNE                        1829
    Due to these limitations, and to a general lack of longitudi-
nal data on individual ELL students, we do not have data that
conclusively demonstrates whether ELL programs ultimately
succeed — that is, whether children pass through them rapidly
and ultimately perform as well as non-ELL students. So,
while the test results we next discuss are certainly troubling,
it is important to understand the limits of their analytic reach.

   With these caveats, we turn to the data. While Arizona stu-
dents generally exceeded NCLB-mandated passage rates in
math and reading, passing the AIMS test at rates of between
60% and 70%, ELL students were far behind. For example,
among third graders, who pass the exam at a higher rate than
older ELL students, only 50% passed the math exam in 2005
and just under 40% passed the reading exam in the same year.22
The situation grows worse at higher grades — in 2005 only
33% of ELL tenth graders passed math and only 20% passed
in 2006. In reading, only 30% passed in 2005 and that number
fell to barely more than 10% in 2006. In neither year did ELL
reading scores in any grade meet federal standards, and in
2006 ELL students’ math test results for all grades also fell
below the federal line at every grade level.

  Nor do students necessarily leave ELL status rapidly.
While all witnesses agreed that some students may swiftly
become proficient in English, they also agreed that many will
need ELL instruction for more than two years, and that some
will still need help after three years of training.

  In short, despite considerable efforts, and some improve-
ments in outcomes, Arizona, as a state, does not appear to
have turned the corner on ELL education performance.
  22
   The passage rates for third graders in 2006 were even lower: 40% for
math and 30% for reading.
1830                   FLORES v. HORNE
                 2.   Conditions in Nogales

   The statewide achievement gap between ELL and non-ELL
students is also present in NUSD, although the district has
made significant strides since 2000. The improvements it has
made, however, appear to be due largely to successful man-
agement rather than to adequate state funding for ELL pro-
grams. The record indicates that with adequate incremental
ELL funding, the improvements could have been greater and
this gap could have been further narrowed.

           a.   Policy Changes and Test Results

   Much of the improvement at NUSD stems from the suc-
cessful management of Kelt Cooper, the district’s Superinten-
dent from 2000 to 2005. His successor, Dr. Guilermo
Zamudio, has largely sustained Cooper’s management poli-
cies. Despite the efforts of both superintendents, however,
ELL students in Nogales continue to face serious challenges.

   Cooper, who took the helm at about the time the Declara-
tory Judgment issued, adopted policies that ameliorated or
eliminated many of the most glaring inadequacies discussed
by the district court at that time. Cooper was able to reduce
class sizes by enforcing restrictions on the district’s open
enrollment policy, significantly improving student/teacher
ratios. In addition to lowering class sizes, Cooper improved
teacher quality by changing the district’s policies regarding
the hiring of experienced teachers and by refusing to pay
unqualified teachers who had been certified on an emergency
basis as if they had the proper experience. He also fired many
teachers’ aides, many of whom were, he found, largely
unqualified. Cooper also worked to institute district-wide stu-
dent performance monitoring. Additionally, he pioneered a
uniform system of textbook and curriculum planning, and he
largely eliminated what had been a severe shortage of instruc-
tional materials by better accounting for and preserving avail-
able materials and by acquiring new materials when needed.
                       FLORES v. HORNE                     1831
   Using careful financial management and applying for “all
funds available,” Cooper was able to achieve his reforms with
limited resources. His budget did, however, rise between two
and four percent annually, partly because the district twice
passed an override, that is, a county-wide tax measure.

   Nonetheless, Cooper’s successor, Dr. Zamudio, indicates
that there are still significant resource constraints. Despite
Cooper’s recruitment efforts, Nogales still must rely on some
long-term substitutes, rather than upon permanent teachers.
Other teachers have been “emergency-certified” and so have
not been trained according to Arizona’s standards. NUSD’s
starting base pay of $28,500 per year, which is below the
statewide average, makes it difficult to recruit the fully-
qualified teachers that NUSD needs. The recruitment chal-
lenges mean that Dr. Zamudio has been unable to reduce
student/teacher ratios further, to 15:1, which, both he and a
defense expert testified, would significantly enhance English
learning success. He would also like to be able to hire trained
teacher’s aides, who would be helpful in ELL programs, for
the lower grades but has been unable to do so because of
resource limitations.

   The limits of NUSD’s progress, even as it has improved its
ELL programs, are apparent in the AIMS test results and
reclassification test results introduced at the hearing, which
show the same problems that appear in the statewide data.
The test results, we caution, have the same limitations that we
have discussed at the state level, and cannot be read unequiv-
ocally to demonstrate that ELL programs are failing in NUSD
because we lack longitudinal data on the performance of stu-
dent cohorts who began as ELL students and who may or may
not have been reclassified. It is fair to say, however, that the
indications provided by the test data largely do not point in
positive directions.

  For instance, while it is clear that NUSD has reclassified
many students, it is not clear how much of this success can
1832                        FLORES v. HORNE
be attributed to genuine academic progress and how much to
changes in its classification methodology. During the 1999-
2000 school year, there were 5,104 ELL students. The next
year saw similar numbers, but between the 2001-02 and the
2003-04 school years, the number of such students hovered
around 3800. Then, when Arizona implemented a new testing
protocol (which was later concluded to be reclassifying too
many students and replaced), the ELL population declined to
about 3200 students in the 2004-05 school year and to 2474
the next year. In 2006-07 a new, reputedly more accurate and
more difficult to pass test came into use, and Dr. Zamudio tes-
tified that he expects ELL student numbers to increase again.

   Because of these shifts in reclassification methodology, the
meaning of “ELL” changed over time. Comparison of AIMS
test data for ELL students and non-ELL students over time are
therefore not reliable. But, as some patterns persist, we can
point to several general trends based on AIMS test results for
the 2003-04, 2004-05, and 2005-06 school years.23

   First, within NUSD, ELL students in lower grades are
doing substantially better than ELL students in higher grades.
In 2005-06, for instance, while only 27% of ELL third graders
failed24 math, 76% of ELL tenth graders failed. ELL third
graders failed reading 37% of the time; 78% of ELL tenth
graders failed. And 35% of ELL third graders failed writing,
while 76% of ELL tenth graders failed.
  23
      Although the patterns we describe are consistent from year to year,
passage rates varied somewhat from year to year. They rose from 2003-04
to 2004-05 but fell again in 2005-06. One of the defense witnesses sug-
gested that the high 2004-05 passage rates could be related to problems
with the reclassification system.
   24
      AIMS is graded on a four-part scale. Students may “fall far below” the
passing score, “approach” but not meet the standard, “meet” the standard,
or “exceed” the standard. When we refer to the percentage of students
“failing,” we mean those who either “fell far below” or only “approached”
the state passing score.
                       FLORES v. HORNE                     1833
   Second, ELL students in NUSD generally do worse than
the state average score for all students (ELL and non-ELL).
Only students in the lower grades sometimes reached or beat
the average. Older students are falling far behind. For tenth
graders in 2005-06, for instance, only 36% failed math state-
wide, but 76% of ELL tenth graders in NUSD did. For read-
ing, the tenth grade state failure rate was 29%, while the tenth
grade ELL failure rate in NUSD was 78%. And for writing,
the state tenth grade failure rate was 36% and the NUSD tenth
grade ELL failure rate was 76%.

   Third, within NUSD, ELL students are still falling behind
the district average for all students. Again, the gap grows
more pronounced in higher grades. In 2005-06 in third grade,
ELL students failed math at a 27% rate, reading at a 37% rate,
and writing at a 35% rate, rates that were not too much worse
than the district averages of 22%, 29%, and 30%, respec-
tively. By tenth grade, however, ELL students failed math at
a 76% rate, reading at a 78% rate, and writing at a 76% rate,
far worse than the district averages of 50%, 42%, and 39%,
respectively.

   The picture, then, is of relative success at lower grades
(although not equal to that of English speaking students
within NUSD), and increasing failures for older students, a
significant majority of whom are failing the state’s basic
achievement tests.

   Federal performance classifications under NCLB generally
correspond with this portrait: In 2004-05, one of Nogales’ two
middle schools failed to meet its adequate yearly progress
goals under NCLB, as did the alternative high school. In
2005-06, the same middle school was under a restructuring
plan, and corrective action was being taken in the alternative
high school. The main high school had been given a warning,
as had a lower-performing elementary school.
1834                        FLORES v. HORNE
   In a survey of the test results of ELL students statewide,
NUSD students’ performance was also consistent with this
general snapshot. This survey, commissioned by Arizona’s
Department of Education, reported the 2005 test results of stu-
dents who were classified as ELL in 2003 and ranked schools
by the average AIMS scores of these students.25 Some, but not
all, of NUSD’s younger ELL students did very well. Four
NUSD elementary schools ranked in the top ten schools in the
state by this measure, with passage rates of over 70%. Two
other elementary schools fared more poorly, ranking 41st and
152nd, with passage rates of about 60% and about 50%,
respectively. Middle school performance was lower — one
tied for 165th place, also with about a 50% passage rate, and
the other ranked 409th, with only about 40% of its ELL stu-
dents passing the test. The high schools are at the bottom of
the heap. The main high school ranks 575th, with a 28.37%
overall passage rate and Santa Cruz Alternative High School
is four from the bottom at 625th place and a 8.62% passage
rate.

   Finally, there is at least one clear bright spot: For all grades
in 2005-06, reclassified ELL students were doing about as
well as native English speakers, which is a notable accom-
plishment, and which suggests that the ELL programs may
well benefit those who successfully transition out of them.
But, as the data on such scores does not track individual stu-
dents, showing when they passed through ELL programs and
   25
      No effort was made to verify that a given student was still ELL or that
he or she had remained in ELL programming for the two intervening
years. Nor are test scores available for these students in 2003. The result
is that the survey data does not present a longitudinal survey of the prog-
ress of students who remained in ELL programs for that period. Nor is the
data of value in demonstrating that NUSD’s ELL students are doing better
relative to non-ELL students, as non-ELL students’ performance was not
measured or ranked. More importantly, if, as Flores alleges, Arizona sys-
tematically underfunds ELL programs statewide, comparing one allegedly
underfunded district with another does not show that funding in any given
district is adequate.
                       FLORES v. HORNE                   1835
how long it took them to do so, and because the reclassifica-
tion methodology continues to shift, this bright spot does not
offset the otherwise troubling ELL test data. On the data
available, it is possible that some high achievers may rapidly
be leaving ELL programs while other students continue to
struggle, never achieving at the same levels as non-ELL stu-
dents. Indeed, Dr. Zamudio testified that reclassification in
NUSD takes, on average, four to five years and the district
court so found. The encouraging success of reclassified stu-
dents is therefore of limited significance with regard to the
overall impact of NUSD’s ELL program.

                        b.   Funding

   NUSD estimates its per pupil incremental costs for ELL
programming for the 2005-06 school year at $1570.42, over
three times the Group B level weight funding Arizona pro-
vides for ELL programs under either HB 2010 or HB 2064.
NUSD has been able to finance the improvements it has made
by seeking grants, diverting state base level funding away
from other purposes, and passing county-level budget over-
rides.

    Of the $1570.42 per pupil that NUSD indicates it spends on
ELL programming, over half this amount, $824.25, is drawn
from the district’s maintenance and operations account (which
includes both the ELL Group B funds and base level support
funding). As this amount is well above the Group B weights,
it indicates that NUSD is dipping into funds that would other-
wise be used to fund basic educational purposes. Federal
funds add about $484.05 per student, but most of these funds
are earmarked for at-risk, low-income students, rather than
ELL students (although the two groups overlap). Another
$43.43 per student comes from county override funds. The
remaining $218.69 per student comes from a variety of state,
federal, and local funding sources and grants.

  NUSD’s budget has increased over the years, but ELL-
specific funds have been a relatively small part of that
1836                       FLORES v. HORNE
increase. A schematic break-down of the budget over the rele-
vant period, which does not appear to include the relatively
small amount of funding from the county, was entered into
evidence before the district court. We reproduce a somewhat
modified version of that table here. The break-down shows all
funds available to ELL students, including funds that are not
ELL-specific. ELL-specific funding sources are labeled as
such, and the total amount of ELL-specific funding is sepa-
rately recorded:


           1999-   2000-   2001-   2002-   2003-   2004-   2005-   2006-
           2000    2001    2002    2003    2004    2005    2006    2007

Base       $2,592 $2,618 $2,721 $2,788 $2,858 $2,929 $3,039 $3,173
level
state
funds

Group B    $156    $157    $163    $321    $329    $337    $349    $44426
ELL
funds

Other      $0      $0      $0      $126    $83     $64     $0      $74
state
ELL
funds

Federal    $439    $448    $467    $449    $487    $638    $603    $597
Title I
funds

Federal    $58     $63     $74     $101    $109    $91     $92     $87
Title II
funds




  26
    This amount is based on HB 2064’s Group B weight increase. If that
portion of HB 2064 does not go into effect, the figure will be $364.86.
                             FLORES v. HORNE                         1837


Federal     $0        $0     $0     $67    $89     $114    $118    $121
Title III
(ELL)
funds

Other     $58         $56    $59    $47    $207    $214    $205    $109
state and
federal
grants

Total       $3,302 $3,342 $3,484 $3,899 $4,162 $4,387 $4,406 $4,605
of all
funds

Total       $156      $157   $163   $514   $501    $515    $467    $639
ELL
funds


   In sum, as this table suggests, ELL-specific funds have
never covered all ELL programming costs. NUSD can pay the
incremental cost of its ELL programs only by diverting non-
ELL-specific funds for that purpose, and the district was able
to do that at the time of the Declaratory Judgment, as now.
These ELL-specific funds, however, have increased, due
largely to the rise in Group B weights occasioned by HB 2010
in 2002-03 and will increase again due to HB 2064 if the new
Group B weight goes into effect. There remains, however, a
fundamental mismatch between the ELL costs NUSD requires
and the funds provided for that specific purpose.27

                 c.    Conditions in Other Districts

  NUSD’s reported incremental costs for ELL programming,
and its need to divert other funds to cover them, are generally
consistent with the experiences of districts across Arizona.
   27
      We note that, for a variety of contractual and statutory reasons, and
to ensure a fiscal cushion, NUSD carries over some portion of its budget
every year, including some funds that it might otherwise spend on ELL
programming or other needs. That practice, rooted in careful fiscal plan-
ning, does not indicate a surplus of funds for educational needs.
1838                        FLORES v. HORNE
District officials testifying at the hearing reported incremental
costs ranging from $1,077 per student to $4,072 per student.
All of these districts are funding their programs by diverting
funds from other sources, often by using additional taxes that
they are allowed to levy for use in desegregation programs.28
Group B weights, alone, are not generally sufficient to fund
ELL programs.

   Testimony from officials in other districts confirms that
reclassification regularly takes longer than two years for many
students. The average reclassification time in the Tucson Uni-
fied School District, for instance, is 4.6 years. In the Murphy
Elementary School District, nearly two-thirds of ELL students
took more than four years to be reclassified. Similarly, in the
Scottsdale Unified School District, the majority of ELL stu-
dents take more than two years to be reclassified, and in the
Glendale Union High School District, 46% of ELL students
at one school and 15% of ELL students at another had been
in ELL programs for more than two years. No district submit-
ted evidence showing that all of its ELL students had been
reclassified within two years.

                   G.    The Ruling on Remand

   After the evidentiary hearing at which the facts concerning
the current status of ELL students and ELL funding were
presented, the district court again denied relief from judg-
ment. Flores v. Arizona, 480 F. Supp. 2d 1157, 1167 (“Flores
XI”) (D. Ariz. 2007).
  28
     A broader survey of school district officials conducted for Flores by
Dr. Chuck Essigs of the Arizona Association of School Business Officials
yielded similar results. Dr. Essigs did not independently verify his survey
results or ensure that responding districts used a common cost reporting
system. As these results vary widely (from $351 to $3,874), neither we nor
the district court rely much upon them. It is worth noting, nonetheless,
that, for the fourteen surveyed districts with over 1,000 ELL students,
incremental costs in 2006-07 in all but one were above $1,000, with most
of the districts’ incremental costs in the range between $1,000 and $2,000.
                        FLORES v. HORNE                      1839
   The court held that the improvements at NUSD do not
establish that Arizona is fulfilling its duty to fund ELL pro-
gramming rationally. Id. at 1160, 1166. Most of these
improvements, the court found, are due to NUSD’s own man-
agement improvements, not to reliable or sufficient funding.
Id. at 1160. And the improvements are limited: NUSD’s ELL
high school students, in particular, are still falling well behind
its non-ELL students, and even the successes will be “fleeting
at best” unless Arizona meets its funding obligations. Id.
Thus, although NUSD is “doing substantially better,” id., and
the state has developed a significantly improved infrastructure
for ELL programming, “mere amelioration of those specific
conditions” cited as examples of the funding shortage in the
Declaratory Judgment, is “inadequate” to justify relief:
“Rather, compliance would require a funding system that
rationally relates funding available to the actual costs of all
elements of ELL instruction.” Id. at 1165.

   The district court went on to determine that the Superinten-
dent and the Legislative Intervenors had not demonstrated that
such a system was in place. The court decided that HB 2064
does not sufficiently address the inadequacies of Arizona’s
ELL funding system and, in fact, introduces new problems. In
so holding, the district court reasoned as follows: HB 2064’s
increase in Group B weights is inadequate, as “the per-student
incremental cost of providing ELL instruction is greater than
either the current Group B weight of $365 [set by HB 2010]
or the increased weight of $444 that would be provided if [the
c]ourt approved HB 2064, both in NUSD and in other dis-
tricts.” Id. at 1162. HB 2064’s two-year cut-off of that fund-
ing would suddenly, and irrationally, further underfund school
districts. Id. at 1166. The HB 2064 grant programs, which
might have linked funding rationally to costs, are no better.
The Arizona structured English immersion fund suffers from
the same irrational two-year cut-off, id. at 1163, and both it
and the compensatory instruction fund violate provisions of
federal law that bar taking federal funds into account in mak-
1840                        FLORES v. HORNE
ing state funding decisions and bar supplanting existing state
funding with federal monies. Id. at 1166.

  The district court concluded that, without a rational funding
system for ELL incremental costs, Arizona remains out of
compliance with the EEOA, despite some successes in
NUSD:

       On January 24, 2000, this Court held that the State’s
       minimum funding level for ELL programs was arbi-
       trary and capricious and bore no rational relation to
       the actual funding needed to insure that ELL stu-
       dents could achieve mastery of the State’s academic
       standards. . . . More than 7 years later, circumstances
       in this regard remain the same. The Moving Parties
       have not shown compliance with this Court’s decree,
       much less changed circumstances that would warrant
       modification or dissolution of this Court’s order.

Id. at 1167. The district court gave Arizona until the end of
the then-current legislative session to comply. Id. The Legis-
lative Intervenors and the Superintendent timely appealed.29




  29
     After Arizona failed to comply with the district court’s order in Flores
XI, the court again found the state to be in contempt on October 10, 2007.
See Flores v. Arizona, No. CV-92-596 (“Flores XII”)(D. Ariz. 2007). The
present compliance deadline is March 4, 2008. Id. at 4. The contempt
order has been separately appealed and is not before us. We do, however,
discuss it below in Part II(C)(2) for the light it sheds on the adequacy of
HB 2064.
FLORES v. HORNE            1841
                  Volume 2 of 2
                            FLORES v. HORNE                           1843
                           II.   ANALYSIS

          A.    Standard of Review and Jurisdiction

  Rule 60(b)(5) provides that “[o]n motion and just terms, the
court may relieve a party . . . from a final judgment . . .
[when] the judgment has been satisfied, released or dis-
charged; it is based on an earlier judgment that has been
reversed or vacated; or applying it prospectively is no longer
equitable.”30

   The first two circumstances do not obtain here: Although
the moving parties argue that Arizona has achieved the pur-
poses of the judgment through actions other than those
required by the Declaratory Judgment and the ensuing orders,
Arizona has in fact not “satisfied” the prior judgment, as it has
not complied with its terms. And there is no pertinent earlier
judgment that has been reversed or vacated. Instead, the mov-
ing parties are, in practical terms, contending that it “is no
longer equitable” to apply the judgment and the present
injunction prospectively.

   It is appropriate to grant a Rule 60(b)(5) motion for this
reason when “the party seeking relief from an injunction or
consent decree [meets its initial burden by showing] ‘a signif-
   30
      Amendments to the Federal Rules of Civil Procedure designed to clar-
ify but not to make any substantive changes became effective on Decem-
ber 1, 2007. See Joseph Kimble, Guiding Principles for Restyling the
Federal Rules of Civil Procedure (Part I), 84 MICH. BAR J 56 (Sept. 2005).
We quote the current version of the rule, although the district court ruled
based on the prior version. The prior version provided that:
    On motion and upon such terms as are just, the court may relieve
    a party or a party’s legal representative from a final judgment,
    order, or proceeding [if] . . . (5) the judgment has been satisfied,
    released, or discharged, or a prior judgment upon which it is
    based has been reversed or otherwise vacated, or it is no longer
    equitable that the judgment should have prospective application.
       We find no relevant distinction between the two formulations.
1844                    FLORES v. HORNE
icant change either in factual conditions or in law.’ ” Agostini
v. Felton, 521 U.S. 203, 215 (1997) (quoting Rufo v. Inmates
of Suffolk County Jail, 502 U.S. 367, 384 (1992)); see also
Bellevue Manor Assoc. v. United States, 165 F.3d 1249, 1255
(9th Cir. 1999) (“Rufo sets forth a general, flexible standard
for all petitions brought under the equity provision of Rule
60(b)(5).”). Once that showing is made, modification may be
warranted “when changed factual conditions make compli-
ance with [a consent decree or an injunction] substantially
more onerous,” when a decree or injunction “proves to be
unworkable because of unforeseen obstacles[,] or when
enforcement of the decree without modification would be det-
rimental to the public interest.” Rufo, 502 U.S. at 384 (cita-
tions omitted); see also SEC v. Coldicutt, 258 F.3d 939, 941-
42 (9th Cir. 2001) (using this standard). Finally, modification
is necessary if a consent decree or injunction “become[s]
impermissible under federal law.” Rufo, 502 U.S. at 388; see
also Agostini, 521 U.S. at 215 (same).

   We review district courts’ rulings on motions for relief
from judgment under Rule 60(b) for abuse of discretion.
United States v. Asarco Inc., 430 F.3d 972, 978 (9th Cir.
2005). “We may not reverse a district court’s exercise of its
discretion unless we have a definite and firm conviction that
the district court committed a clear error of judgment in the
conclusion it reached upon weighing the relevant factors.”
Coldicutt, 258 F.3d at 941. In this context, “[a] district court
abuses its discretion if it does not apply the correct law or if
it rests its decision on a clearly erroneous finding of material
fact.” Asarco, 430 F.3d at 978.

   We emphasize that our task in this context is a limited one:
We do not sit to retry the case, nor to reexamine unappealed
legal determinations, and do not have jurisdiction to do so.
“[T]he timely filing of a notice of appeal in a civil case is a
jurisdictional requirement,” Bowles v. Russell, 127 S. Ct.
2360, 2366 (2007), and “[b]ecause the time for appeal ha[s]
passed in this case, the interest in finality must be given great
                            FLORES v. HORNE                          1845
weight.” Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir.
1981). We have cautioned against the use of provisions of
Rule 60(b) to circumvent the strong public interest in timeli-
ness and finality served by Rule 4(a). See In re Stein, 197
F.3d 421, 425-26 (9th Cir. 1999). Simply put, motions for
relief from judgment may not be used to remedy a failure to
contest in the first instance the legal rulings underlying the
judgment itself.31

   Our review is somewhat closer in the context of institu-
tional injunctions against states “due to federalism concerns”
implicated by such injunctions. Hook v. Arizona Dep’t of
Corr., 107 F.3d 1397, 1402 (9th Cir. 1997). In such contexts,
“[w]e scrutinize the injunction closely to make sure that the
remedy protects the plaintiffs’ federal constitutional and statu-
tory rights but does not require more of state officials than is
necessary to assure their compliance with federal law.” Clark
v. Coye, 60 F.3d 600, 604 (9th Cir. 1995); see also Hook, 107
F.3d at 1402. Nonetheless, “we will defer to the district court
so long as any injunctive relief it provides remains within
these parameters,” Clark, 60 F.3d at 604, and the burden of
proof remains on the moving party. Hook, 107 F.3d at 1402;
Rufo, 502 U.S. at 383-84. Additionally, federalism concerns
  31
     The Legislative Intervenors cite to a pre-Agostini Sixth Circuit case,
In re Detroit Auto Dealers Ass’n, Inc., 84 F.3d 787, 790 (6th Cir. 1996)
for the proposition that a “party should be entitled to modification when-
ever the original decree could not properly have been issued on the state
of facts that now exists.” This sentence, in turn, is drawn from a decades-
old student note, Developments in the Law — Injunctions, 78 HARV. L.
REV. 994, 1082 (1965), which was prescribing changes in the then-current
law, not describing the state of the law.
   To comport with modern law, and particularly with the final nature of
unappealed judgments, the language must be read to mean that relief is
appropriate when the “original decree could not properly have been issued
on the state of facts that now exists applying the legal framework used by
the original unappealed judgment.” Otherwise, such a rule would invite
relitigation of settled judgments using Rule 60(b) as a vehicle, a use
which, as noted, is improper.
1846                    FLORES v. HORNE
are substantially lessened here, as the state of Arizona and the
state Board of Education wish the injunction to remain in
place.

   The Superintendent and Legislative Intervenors also ques-
tion the district court’s compliance with our mandate on
remand and the propriety of several evidentiary rulings. “This
court reviews de novo a district court’s compliance with the
mandate of an appellate court.” United States v. Perez, 475
F.3d 1110, 1112 (9th Cir. 2007) (citations and alterations
omitted). With exceptions not pertinent here, “we generally
review the district court’s ruling on a motion in limine only
for an abuse of discretion.” United States v. Ross, 206 F.3d
896, 898 (9th Cir. 2000).

   Finally, the parties dispute each others’ standing. The Leg-
islative Intervenors, first, contend that Flores lacks standing to
argue that HB 2064 does not represent a change in circum-
stances sufficient to warrant relief. The Legislative Interve-
nors are wrong: HB 2064 holds itself out as a remedy for
Flores and was presented to the court by Arizona and by the
Superintendent and Legislative Intervenors as such. Whether
or not Flores would have had standing to challenge HB 2064
in the first instance, she certainly has standing to argue that
a purported remedy will not satisfy a judgment in her favor.

   Second, Flores challenges the standing of the Superinten-
dent because he does not make the funding decisions at the
core of this case. As to that basis for disputing the Superinten-
dent’s standing, Flores is wrong. The Superintendent does
not, it is true, write school funding laws, but he does adminis-
ter the state’s education system, including the HB 2064 grant
system, see ARIZ. REV. STAT. § 15-251, and obviously has a
vital interest in whether or not funding for the programs he
oversees is EEOA compliant. He is a named defendant in the
case; the Declaratory Judgment held him to be in violation of
the EEOA, Flores II, 172 F. Supp. 2d at 1239-40, and the cur-
                            FLORES v. HORNE                           1847
rent injunction runs against him.32 That judgment against him
may not be essential to relief does not mean that he lacks
standing to contest an order running against him.

   The Superintendent’s standing is, however, for a different
reason, fairly tenuous. He is “[s]ubject to supervision by the
state board of education” with regard to distributing monies
to local schools, and must “[e]xecute, under the direction of
the state board of education, the policies which have been
decided upon by the state [B]oard.” ARIZ. REV. STAT. § 15-
251(3), (5). It appears that the Superintendent, by filing the
motion to vacate the judgment, by pursuing this appeal, by
maintaining that ELL-specific funding does not matter to the
success of ELL education in Arizona, and by seeking to derail
any additional ELL-specific funding in Arizona, is not carry-
ing out “the policies which have been decided upon by the
state board,” which this litigation suggests are directly to the
contrary in all regards. Moreover, the Superintendent’s stand-
ing is limited to defending against the judgment and injunc-
tion as they run against him. The other defendants are not
seeking relief from the judgment and orders, and the judgment
and orders against the remaining defendants can be given full
effect without running against the Superintendent, as the state
Board of Education can order him to comply.

   The state Board of Education, however, is obviously fully
aware of the actions the Superintendent has taken in this liti-
gation. There has been no suggestion that it has ordered him
to drop his motion or this appeal, or to conform his position
to that of the board, although it may well be that it could do
so. Given that vacuum, we have no basis for determining on
the present record that the Superintendent is acting outside his
  32
     That the injunction may be enforced against the Superintendent is
indicated by the current civil contempt order which orders him to “use
[his] best efforts within the power granted to [him] . . . to ensure compli-
ance with the March 22, 2007 Order [Flores XI] by March 4, 2008.” Flo-
res XII, No. CV-92-596 (D. Ariz. October 10, 2007).
1848                    FLORES v. HORNE
authority in bringing his motion and pursuing this appeal. We
will not substitute our judgment for that of the state Board,
which better knows its own policy determinations and can
choose when to exercise its supervisory authority. We do
observe, however, that the current structure of this litigation
is placing the federal judiciary in the uncomfortable position
of mediating between state officials with regard to the execu-
tion of an obligation of the state as a whole. It would be vastly
preferable for the state to work out through its own political
structure a consistent position and approach.

   Despite these concerns and although the issue is exceed-
ingly close, we conclude that the Superintendent does have
standing to maintain his Rule 60(b)(5) motion and this appeal,
but note that the result had he succeeded would have been to
vacate the judgment and injunction only as they run against
him.

   Third, Flores challenges the standing of the two Legislative
Intervenors, as they speak only for themselves and do not rep-
resent the legislature as a whole, have no judgment against
them, and no apparent direct interest in the judgment outside
of an abstract policy interest. We need not decide this ques-
tion, although the extent and degree of the standing of indi-
vidual legislators under these circumstances is in very serious
question. See Raines v. Byrd, 521 U.S. 811, 829 (1997). Par-
ties need not have standing to intervene in our circuit, see
State of California Dep’t of Soc. Servs. v. Thompson, 321
F.3d 835, 846 n.9 (9th Cir. 2003), although they must have
standing to appeal, see Diamond v. Charles, 476 U.S. 59, 68
(1986). Because the Superintendent does have standing and
also appealed, we would not lose jurisdiction over this appeal
even if the Legislative Intervenors did not have standing.

                   B.   Evidentiary Issues

   Preliminarily, we briefly address evidentiary issues arising
from the hearing. The Legislative Intervenors contend that the
                        FLORES v. HORNE                     1849
district court erred by admitting (1) evidence of ELL costs
outside NUSD; (2) evidence of non-incremental costs; (3) the
testimony of Flores’ expert on federal education funding law;
and (4) the NCSL study, the Staffers’ study, and Dr. Essigs’
study. We find no abuses of discretion.

   [1] First, because Arizona never complied with the district
court’s earlier orders to prepare and adopt a cost study, the
district court was right to look to whatever reliable evidence
of ELL programming costs was available so as to better
understand and assess the costs in NUSD. The experiences of
other districts help to establish what incremental costs for
ELL programs are likely to be, the variability in those costs,
and various ways of delivering the programs. Admitting such
evidence was not an abuse of discretion.

   [2] Likewise, we find no abuse of discretion with regard to
admitting evidence of “non-incremental” costs. The Legisla-
tive Intervenors contend that some of the costs identified by
NUSD and other districts do not fit within HB 2064’s defini-
tion of “incremental costs.” It is not at all clear why that par-
ticular definition should control at the hearing, as HB 2064’s
adequacy as a whole was and is in question. In any event,
although the Legislative Intervenors may disagree about how
costs were measured, they had ample opportunity to challenge
cost figures at the hearing, and took that opportunity.

   [3] Third, we find no abuse of discretion with regard to the
expert testimony on federal educational funding law. It is true
that “matters of law” are generally inappropriate subjects for
expert testimony, Aguilar v. Int’l Longshoremen’s Union
Local No. 10, 966 F.2d 443, 447 (9th Cir. 1992), but there
may be “instances in rare, highly complex and technical mat-
ters where a trial judge, utilizing limited and controlled mech-
anisms, and as a matter of trial management, permits some
testimony seemingly at variance with the general rule.”
Nieves-Villanueva v. Soto-Rivera, 133 F.3d 92, 101 (1st Cir.
1997). In this hearing, which was, in large part, an inquiry
1850                       FLORES v. HORNE
into education law and policy, the expert testimony may well
have been helpful. It was, in any event, not prejudicial in this
bench trial, where there was no danger that a jury might give
too much credence to a legal expert. See id. at 99.

   [4] Finally, we find no abuse of discretion with regard to
the admission of the three cost studies.33 The NCSL study,
conducted by an expert research agency and based on expert
opinion is certainly not unreliable under the standards set by
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
and extended by Kumho Tire Co., Ltd. v. Carmichael, 526
U.S. 137 (1999). To the extent that one portion of the study
— its survey of Arizona schools — had a low response rate,
the study notes the deficiency and cautions against giving that
portion too much weight. There was no error in admitting it.

   The Staffers’ study, which was prepared as a partisan advo-
cacy document by non-experts, and Dr. Essigs’ survey, which
did not use any form of verification and appears to have been
an entirely informal email survey, are more questionable. But
even if there was error here, the Legislative Intervenors were
not prejudiced. As a general matter, “in a bench trial, the risk
that a verdict will be affected unfairly and substantially by the
admission of irrelevant evidence is far less than in a jury
trial.” E.E.O.C. v. Farmer Bros. Co., 31 F.3d 891, 898 (9th
Cir. 1994). So, too, for potentially unreliable evidence. Given
that the two studies are largely duplicative of other properly
admitted evidence, and given the facial deficiencies of HB
2064, we cannot say that the outcome of the hearing would
have been any different had the two studies not been admit-
ted. There is no reversible error here, so we turn to the merits.
  33
    Flores argues that two of the studies are admissible under the public
records exception to the hearsay rule, Fed. R. Evid. 803(8). That point is
not clear, but we do not decide the question, as there was no prejudice
resulting from their admission.
                            FLORES v. HORNE                            1851
          C.    Is Relief from Judgment Warranted?

   This case is unusual in that the Superintendent and Legisla-
tive Intervenors (1) did not appeal from the original judgment
holding that Arizona’s funding system for ELL programs was
in violation of the EEOA; (2) did not appeal from the injunc-
tions issued to remedy that violation; and (3) argue only in the
alternative that HB 2064, which defines Arizona’s ELL fund-
ing system, demonstrates actual compliance with the Declara-
tory Judgment and so warrants relief. The Legislative
Intervenors maintain that Arizona is in compliance “with or
without” HB 2064, and the Superintendent similarly main-
tains that the statute is “irrelevant.”

   As to the third point, both the Superintendent and the Leg-
islative Intervenors argue that the district court should not
have considered HB 2064’s legality on remand.34 They
instead primarily argue that neither we, nor the district court,
need look to HB 2064 at all. In their view, conditions have so
changed as to make the Declaratory Judgment’s emphasis on
developing a cost-linked ELL funding structure irrelevant and
so render it inequitable to require the state to do so.

   Our previous Rule 60(b) cases generally deal with requests
for modification due to changed circumstances that rendered
compliance more onerous, see Asarco, 430 F.3d at 975-76;
Bellevue Manor Assoc., 165 F.3d at 1250-52, or due to actual
compliance, see Coldicutt, 258 F.3d at 941-43. The moving
parties here, instead, urge us to look away from Arizona’s
attempt to comply — HB 2064 — and turn instead to other
factors — a generalized increase in state funding, changes in
the management of NUSD, and passage of the No Child Left
Behind Act of 2001. These changes, they urge, sweep away
the foundations of the prior rulings and so justify relief from
them.
  34
     In contrast, their original motion for relief from judgment relied heav-
ily upon HB 2064 as grounds for relief.
1852                       FLORES v. HORNE
   As a general matter, there are some instances, likely rare,
in which a prior judgment is so undermined by later circum-
stances as to render its continued enforcement inequitable
even though neither appealed nor complied with. See, e.g.,
Rufo, 502 U.S. at 383-85. Such circumstances are not present
here, however, nor do we think it proper to reward Arizona’s
foot-dragging by granting relief from judgment on grounds
that could have been raised on appeal from the Declaratory
Judgment and from earlier injunctive orders but were not.
Further, HB 2064 is among the most significant changes in
ELL education and finance in the state since the Declaratory
Judgment issued and so must be examined to determine
whether it constitutes compliance with the district court’s
orders.

  We now discuss the arguments for relief in turn, beginning
with the novel proposition that the judgment need no longer
be complied with and then turning to whether Arizona has
complied.

         1.   Whether Compliance is Still Equitable

    The core premise of the Declaratory Judgment is that Ari-
zona is “violating the EEOA because [its] arbitrary and capri-
cious Lau appropriation is not reasonably calculated to
effectively implement the Lau educational theory which it
approved, and NUSD adopted.” Flores II, 172 F. Supp. 2d at
1239. The central idea, then, is that ELL programs impose
costs additional to those generated by ordinary school activi-
ties, id. (“The State’s minimum base level for funding Lau
programs . . . . bears no relation to the actual funding needed.
. . .”), and that, in the absence of such state support, ELL pro-
grams would necessarily be inadequate.35 The district court
  35
    That premise has been repeated and amplified in a host of similarly
unappealed post-judgment relief orders. See, e.g., Flores VII, No. CV-92-
596 at 5 (D.Ariz. January 28, 2005); Flores VI, No. CV-92-596 at 2 (D.
Ariz. June 12, 2002); Flores III, 160 F.Supp. 2d at 1044.
                            FLORES v. HORNE                            1853
listed six deficiencies generated by inadequate resources in
2000. Because many of these specific problems have been
solved by better management in NUSD, and because school
funding has generally increased, the Superintendent and Leg-
islative Intervenors argue that the judgment has effectively
been satisfied.36 We review these arguments; it is not, how-
ever, our task to retry the case. The district court should be
affirmed unless it has clearly erred on the record before it in
its factual findings or otherwise has abused its discretion.

   NUSD should not be penalized for doing its best to make
do, despite Arizona’s failure to comply with the terms of the
judgment. Granting relief would absolve the state from pro-
viding adequate ELL incremental funding as required by the
judgment. The judgment determined that the state has not pro-
vided adequate resources to support NUSD’s ELL program-
ming, as required by the EEOA. We cannot now decide anew
the unappealed Declaratory Judgment, nor the many post-
judgment orders so holding. As we have explained, the provi-
sions of Rule 60(b) may not be applied to “derogate from the
purpose and effect of Rule 4(a).” In re Stein, 197 F.3d at 425.
The legal determinations made in the Declaratory Judgment
were unappealed and are now final.

  Underlying the Declaratory Judgment and post-judgment
orders is the basic determination under the EEOA that, given
   36
      The Superintendent and Legislative Intervenors also argue that NUSD
must have solved its problems because district officials signed a federal
grant application that contains a boilerplate assurance that it is in compli-
ance with all state and federal laws and regulations. First, whether NUSD
is in compliance is not the issue; NUSD is not a defendant. Arizona is, so
the question is whether Arizona is in compliance. It is true that the state
also submitted a rote assurance of compliance with federal law (although
no party relies upon it), but we cannot say that the district court was
obliged to accept such boilerplate, generalized statements as true, or that
the unsubstantiated statements make the district court’s considered deter-
mination that NUSD still has problems, based on district-specific data,
clear error.
1854                     FLORES v. HORNE
Arizona’s educational funding structure, ELL programs
require substantial state funding in addition to that spent on
basic educational programming. That conclusion rests, in turn,
on the recognition that ELL students require additional atten-
tion to bring their language skills to the point where they can
fully benefit from instruction in English.

   To prevail on their argument, then, the Superintendent and
Legislative Intervenors needed to show either that the basic
factual premises of the district court’s central incremental
funding determination had been swept away, or that there has
been some change in the legal landscape that makes the origi-
nal ruling now improper. It will not suffice to argue for vacat-
ing the judgment because of factual or legal circumstances
that have not changed the basic premises of the original rul-
ings.

                    a.    Changes in Fact

   [5] We begin with the moving parties’ attempt to make the
first, fact-based showing — that the factual circumstances
have so shifted as to sweep away the unappealed incremental
funding determination. To succeed on this ground, given the
original ruling, they were required to demonstrate either that
there are no longer incremental costs associated with ELL
programs in Arizona or that Arizona’s “base plus incremental
costs” educational funding model was so altered that focusing
on ELL-specific incremental costs funding has become irrele-
vant and inequitable.

   [6] Turning, then, to the first possibility, we cannot find
that the district court clearly erred when it found, consistent
with the basic premises of this litigation, that in 2007, as in
2000, “ELL students need extra help and that costs extra
money.” Flores XI, 480 F. Supp. 2d at 1161. At the evidenti-
ary hearing, all witnesses agreed that ELL students face
unique challenges which require school districts to invest sub-
stantially in teacher training, materials, monitoring, and
                       FLORES v. HORNE                     1855
assessment efforts. If anything, after 2000, when Arizona
moved away from bilingual education and required most
courses to be taught in English, regardless of students’ lan-
guage 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 consid-
erable assistance. The recent statewide program to improve
ELL testing, monitoring, and support programs also imposes
incremental costs on school districts.

   [7] Nor did the district court err when it determined that
“the per-student incremental cost of providing ELL instruc-
tion is greater than either the current Group B weight” of
about $340 per student or the roughly $450 per student that
would be provided were HB 2064’s provision on Group B
weights to be approved. Id. at 1162. As the Superintendent
and Legislative Intervenors observe, Superintendent Cooper’s
management changes did ameliorate many of the specific
examples of resource shortages that the district court identi-
fied in 2000. They did not, however, result in such success as
to call into serious question NUSD’s need for increased incre-
mental funds. NUSD’s own cost study, along with evidence
from other districts throughout Arizona, placed estimated
incremental costs at well over $1000 per student. The expert
panels consulted in the NCSL study similarly recommended
spending over $1000 per student, and, in some cases, recom-
mended spending over $2000 per student. The NCSL’s school
district survey reported actual per student spending as in the
$600 range but cautioned that that figure might be an underes-
timate. The SjobergEvashnek study reported that actual
expenditures in NUSD shortly after the Declaratory Judgment
were in the $300 per student range but also noted that its esti-
mate was likely low. Taken together, these studies provide
very strong support for the proposition that the incremental
costs of a compliant program not only exceed the Group B
weights, either as presently set or as provided by HB 2064, as
1856                       FLORES v. HORNE
the district court concluded, but in fact likely exceed $1,000
per student, both in Nogales and statewide.37

   The Superintendent and Legislative Intervenors nonetheless
maintain that the improvements in ELL achievement in
NUSD demonstrate that additional incremental funding is no
longer required. To the contrary, the data from NUSD sup-
ports our conclusion that the district court did not abuse its
discretion in holding otherwise.

   As Dr. Zamudio testified, resource constraints remain:
NUSD still cannot afford to pay market rate salaries to attract
the teachers it needs to reduce class sizes to levels more con-
ducive to ELL education, nor can it hire qualified teacher’s
aides for the lower grades. That these constraints matter is
apparent from the persistent achievement gaps documented in
NUSD’s AIMS test data. As we discussed at length above,
ELL students in NUSD continue to fall behind their native-
English-speaking counterparts, both statewide and within the
district. These gaps grow in the higher grades, as the district
court found, and are disturbingly large. Although, as we have
noted, the data is limited, the burden here is on the moving
parties to prove the factual changes on which they premise
their motion to vacate the judgment. See Asarco, 430 F.3d at
979. We cannot say that the district court clearly erred when
it found this burden was not met. 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
  37
     Arizona’s ineffectiveness in ascertaining costs has made the question
of costs more difficult to answer than it might have been. Because the
state’s efforts to gather cost study data were incomplete — the
SjobergEvashnek study was inconclusive and the NCSL study was repudi-
ated by the legislature, see HB 2064 § 13(C) — the precise incremental
costs of ELL programming are not known and we and the district court
must rely on what evidence is in the record from the various cost studies
and from NUSD and other districts.
                            FLORES v. HORNE                            1857
adequately funding ELL programs and so warrants relief from
judgment.38

   The Superintendent and Legislative Intervenors respond,
essentially, that even if ELL programming costs do exceed
ELL-specific funding, there is ample state funding to cover
them. They argue, in other words, that focusing solely on
ELL-specific funding, and on the Group B weights in particu-
lar, is no longer appropriate given general increases in educa-
tion funding since 2000.39 Such a focus, they contend,
mistakes “the details, even the minutiae, of the intermediate
methodologies the court has devised” to reach compliance for
compliance itself. Glover v. Johnson, 138 F.3d 229, 233 (6th
Cir. 1998).40 With this argument, the Superintendent and Leg-
  38
      That reclassified students in the 2005-06 school year do about as well
as native English speakers, however, is encouraging, and may suggest
some degree of success, as does the increase in reclassification rates in
NUSD. But because the reclassification standard has repeatedly changed
and because the record indicates that reclassification takes many years, the
record does not demonstrate that NUSD is succeeding in rapidly and per-
manently reclassifying ELL students, nor on the time it takes to reclassify
students. On the current record, we certainly cannot say that the encourag-
ing data on the scores of reclassified students and on reclassification rates
is sufficient to have rendered the district court’s findings clearly errone-
ous.
   39
      They also point to the increased institutional support, such as new
training and monitoring programs, now provided by the state. That support
is of limited relevance, as the need to establish monitoring and training
programs was set out in the Flores consent decree. That Arizona may have
satisfied the decree, which dealt with issues not included in the Declara-
tory Judgment, does not mean that the Judgment has also been satisfied.
   40
      In Glover, a district court overseeing an original judgment ordering
parity in the treatment of prisoners regardless of gender was holding the
defendants to finely-tuned compliance plans that specified, with great
detail, conditions in the prisons. Id. at 233-36. The Sixth Circuit vacated
a round of contempt sanctions arising from violations of these plans,
emphasizing that the goals of the underlying judgment were simply to fix
the underlying gender discrimination and end judicial involvement and
warning against “judicial micromanagement.” Id. at 241, 245. As we
develop, infra, such micromanagement is not at issue here.
1858                    FLORES v. HORNE
islative Intervenors seek to reopen matters made final when
the Declaratory Judgment was not appealed. The EEOA pro-
vides that states must not “deny equal educational opportunity
. . . by . . . the failure by an educational agency to take appro-
priate action to overcome language barriers that impede equal
participation.” 20 U.S.C. § 1703(f) (emphasis added). Divert-
ing base level funds — thereby hurting all students in an
attempt to equalize opportunities for ELL students — is not
an “appropriate” step. The district court recognized as much
by holding that Arizona had not taken “appropriate” action to
comply with the EEOA at Castaneda step two by failing to
“set a minimum base funding level per [ELL] student” that
was rationally related to costs, regardless of the base level
funding provided for all students. Flores II, 172 F. Supp. 2d
at 1239.

   For eight years, Arizona has attempted to remedy that defi-
ciency in ELL-specific funding, and for eight years the parties
have litigated based upon that premise. Unlike in Glover,
which repudiated the district court’s excessive concern with
specific compliance steps rather than with the core of its judg-
ment, looking to the adequacy of ELL-specific funding does
not miss the forest for the trees. It cuts to the heart of this
case, which has been about such funding since 2000, when the
parties dealt with the other issues in a consent decree. If the
Superintendent and Legislative Intervenors believed that the
district court erred and should have looked at all funding
sources differently in its EEOA inquiry, they should have
appealed the Declaratory Judgment. They may not now up-
end its basic legal conclusions.

   [8] Nor have the fundamentals of the Arizona school fund-
ing system changed in any way that undermines the district
court’s original conclusion that incremental ELL funding is
what matters for EEOA purposes. Accepting the Superinten-
dent and Legislative Intervenors’ argument would be to hold
that the funding restrictions and categories used by Arizona
are meaningless. As we have explained, Arizona allocates
                           FLORES v. HORNE                         1859
ELL funding on top of base level support. HB 2010 and HB
2064 have followed this approach. This statutory scheme is
still premised on the idea that ELL programming imposes
costs additional to those covered by ordinary base level fund-
ing. Base level funds are still provided in block grants, as in
2000, and the grants are, as they were in 2000, unrestricted.
And base level funding, although apparently not itself based
on a clear cost accounting of educational needs, see Roosevelt
I, 877 P.2d at 810, must still support most non-ELL educa-
tional costs. It is the base level funds that, if NUSD had no
ELL students, would be spent on math, reading, writing, and
other basic subjects. That funds for both basic educational
support and ELL costs have increased does not indicate that
the fundamental pattern has changed. In 2000, as today, ELL
incremental costs could be covered by diverting basic educa-
tional support, hampering the state’s ability to provide a basic
education to all Arizona students. So, by underfunding ELL
programs and forcing NUSD to dip into those base level
funds, Arizona still forces it to choose between base level
needs and ELL programs — which the district court refused
to view as an answer to ELL funding in 2000, when the
option was as available as it is now. That binding legal deter-
mination is not now subject to reconsideration.41
  41
     Federal funds have also been taken out of the compliance calculus by
the Declaratory Judgment. The district court understood EEOA compli-
ance to be a state obligation and so ruled when, despite noting the pres-
ence of federal grants (which it doubted would be renewed), it held
Arizona to be out of compliance with the EEOA for providing inadequate
state funding and required Arizona to fund its ELL programs adequately.
Flores II, 172 F. Supp. 2d at 1236, 1239. That unappealed determination
still stands. Although federal funds have since increased, we do not find
that this increased funding availability undermines the district court’s
basic legal determination that the EEOA obligation rests in the first
instance with Arizona. Indeed, as we discuss below, federal education
funding law is generally designed to layer federal funds on top of state
education funding and to ensure that state funds are allocated without
regard to federal funds.
1860                     FLORES v. HORNE
   Nor do circumstances in NUSD demonstrate that anything
has happened to undermine the district court’s conclusion in
the original Declaratory Judgment that adequate levels of
ELL-specific funding were critical to EEOA compliance.
Ninety percent or more of NUSD students are either still in
or have been in ELL programs. It is the same students who
will suffer as the district shifts funding away from core educa-
tional needs to support ELL programs. When NUSD must
choose to fund, say, required structured English immersion
endorsements for its staff, rather than expanding its high
school math or art offerings, all students will suffer, including
ELL students, now as in 2000.

   In short, the solution posited by the Superintendent and
Legislative Intervenors— which the amici school districts and
school boards in this case call a “Hobson’s choice” — was
rejected by the district court as a matter of law in the Declara-
tory Judgment when it based its holding on ELL-specific
funding in general and the Group B weights in particular.
Nothing significant has changed to undermine that ruling.
Instead, the Superintendent and Legislative Intervenors are
simply placing their suggested solution — spending less on
basic education so as to have sufficient funds for ELL pur-
poses — on the table after it was necessarily rejected in the
unappealed judgment, which requires ELL-specific funding.
That they may not do.

   [9] There was no clear error in the district court’s factual
findings and no abuse of discretion in its legal conclusion that
the landscape was not so radically changed as to justify relief
from judgment without compliance.

                    b.    Changes in Law

   The Superintendent and Legislative Intervenors also offer
a legal change argument as to why the premises of the Declar-
atory Judgment have been so undermined as to justify relief
from judgment despite noncompliance. They maintain that the
                             FLORES v. HORNE                              1861
passage of NCLB — and, in particular its Title III, which
focuses on ELL students — has in some fashion altered their
obligations by making the Castaneda v. Pickard framework
“obsolete,” urging two points: First, that state compliance
with NCLB benchmarks should be enough to satisfy the
EEOA, and hence the judgment and, second, that NCLB obvi-
ates any need to do a state-wide cost study of ELL program
incremental costs.

   We are unpersuaded by the first, more important point. The
Superintendent and Legislative Intervenors fail to appreciate
the distinct purposes of the EEOA and NCLB: The first is an
equality-based civil rights statute, while the second is a pro-
gram for overall, gradual school improvement. Compliance
with the latter may well not satisfy the former.42

   [10] Title III of NCLB sets out to “help ensure that children
who are limited English proficient . . . attain English profi-
ciency . . . and meet the same challenging State academic con-
tent and student achievement standards as all children are
expected to meet.” 20 U.S.C. § 6812(1). To aid in this goal,
it provides grants to states with federal government-approved
plans to benefit ELL students. See 20 U.S.C. §§ 6821-26. To
retain grant eligibility, grantees must meet “annual measur-
able achievement objectives . . . includ[ing] . . . making ade-
quate yearly progress for limited English proficient children.”
See 20 U.S.C. § 6842.

   These objectives include “at a minimum, annual increases
in the number or percentage of children making progress in
learning English,” “at a minimum, annual increases in the
  42
     We also note that NCLB became law on January 8, 2002, see 115 Stat.
1425, prior to the district court’s compliance rulings on HB 2010, prior to
the parties’ previous appearance before this court in 2006, and more than
five years prior to this appeal. It is now more than a little late to argue that
NCLB effectively repeals the EEOA, and so justifies relief from the dis-
trict court’s judgment and orders. Any such change occurred well before
the most recent orders were entered.
1862                       FLORES v. HORNE
number or percentage of children attaining English profi-
ciency by the end of each school year,” and “making adequate
yearly progress” in such children’s academic achievement. 20
U.S.C. § 6842(a)(3)(A). Arizona defines these goals as
“yearly growth in the fraction of students making progress
towards English proficiency, those attaining English profi-
ciency, and those students meeting/exceeding the AIMS
objectives in order for Arizona to [meet the requirement that
100% of all students pass AIMS by] 2013-14.” ARIZONA’S
SCHOOL ACCOUNTABILITY SYSTEM TECHNICAL MANUAL: VOLUME
III: TITLE III ACCOUNTABILITY at 5 (2005). Specifically, school
districts are required to increase the fraction of students mak-
ing progress toward English proficiency or being reclassified
as English proficient by a specified percentage each year.43
Additionally, increases in reading and math proficiency are pre-
scribed.44 Id. at 5-11. Importantly, this very gradual improve-
ment plan does not set as an objective immediate equalization
of educational opportunities for each such student.

   [11] NCLB, in other words, packages federal grants with
discrete, incremental achievement standards as part of a gen-
eral plan gradually to improve overall performance. It does
not deal in the immediate, rights-based framework inherent in
civil rights law, although it is intended to ameliorate over the
longer haul the conditions that lead to civil rights violations.
Perhaps recognizing as much, Title III of NCLB explicitly
provides that “[n]othing in this part shall be construed in a
manner inconsistent with any Federal law guaranteeing a civil
right.” 20 U.S.C. § 6847.

  [12] 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
  43
      In academic year 2003-04, a 10% increase was required. This require-
ment increases by one percentage point each year until 2011.
   44
      This increase must equal roughly 10% every three years until 2010,
at which point it must increase 10% per annum until 2014.
                          FLORES v. HORNE                       1863
Council v. Bd. of Educ., 647 F.2d 69, 71 (9th Cir. 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; Los Angeles NAACP v. Los
Angeles Unified Sch. Dist., 714 F.2d 946, 950-51 (9th Cir.
1983). The EEOA’s concerns, in other words, lie fundamen-
tally with the current rights of individual students, while
NCLB seeks gradually to improve their schools. An individ-
ual student whose needs are not being met under the EEOA
need not wait for help just because, year after year, his school
as a whole makes “adequate yearly progress” towards improv-
ing academic achievement overall, including for ELL stu-
dents.

   The position pressed by the Superintendent and the Legisla-
tive Intervenors — that state compliance with NCLB neces-
sarily satisfies the EEOA45 — cannot be squared with this
understanding of the two statutes. In their view, NCLB now
defines “appropriate action” under the EEOA, such that
NCLB compliance is dispositive of EEOA compliance,
regardless of whether incremental ELL funding is currently
adequate to provide equal educational access to ELL students.
But such an interpretation would, first, produce strange
results: If a state happened to meet adequate yearly progress
under NCLB one year, no suits could proceed under the
EEOA, even if fundamental linguistic inequalities persisted in
some or all of its schools, even if ELL financial resources
were entirely inadequate, and even if the particular students
bringing suit had not received adequate ELL assistance nor
made any progress towards English language proficiency.
Any meaningful ability to use the right of action under the
EEOA would thus wink in and out of existence based upon
the year-to-year vagaries of overall school test scores. The
EEOA does not tolerate such ephemeral compliance. See Cas-
  45
    We note that even if the state as a whole complies with NCLB, that
does not mean that the individual district is in compliance.
1864                    FLORES v. HORNE
taneda, 648 F.2d at 1010 (holding that a state violates the
EEOA if even an adequately-funded program “fails, after
being employed for a period of time sufficient to give the plan
a legitimate trial”). The district court so held in the Declara-
tory Judgment. Flores II, 172 F. Supp. 2d at 1238.

   [13] Our point, boiled down, is that the Superintendent’s
and Legislative Intervenors’ view, if adopted, would effec-
tively repeal the EEOA by replacing its equality-based frame-
work with the gradual remedial framework of NCLB. Such a
result is simply not consistent with the text of either the
EEOA or NCLB. There is certainly no express repeal provi-
sion in NCLB. Quite to the contrary, NCLB contains a sav-
ings clause with regard to civil rights statutes.

   [14] Nor did NCLB repeal the EEOA by implication.
“[R]epeals by implication are not favored. . . . In the absence
of some affirmative showing of an intention to repeal, the
only permissible justification for a repeal by implication is
when the earlier and later statutes are irreconcilable.” Morton
v. Mancari, 417 U.S. 535, 549-50 (1974); see also Nat’l Ass’n
of Home Builders v. Defenders of Wildlife, 127 S. Ct. 2518,
2532 (2007) (implied repeals are “not favored” and will only
be inferred if “the later statute expressly contradicts the origi-
nal act or unless such a construction is absolutely necessary
in order that the words of the later statute shall have meaning
at all”) (internal quotations and alterations omitted). Such is
not the case here. The goals of the two statutes are comple-
mentary, as the saving provision of NCLB for civil rights stat-
utes indicates.

   We also cannot agree with the Superintendent and the Leg-
islative Intervenors that this is a case where “a precisely
drawn, detailed statute pre-empts more general remedies.”
Brown v. Gen. Serv. Admin., 425 U.S. 820, 834 (1976). Such
cases concern instances where Congress has provided a nar-
rower remedy for a class of harms otherwise covered by an
older and more general statute. See id. (collecting cases). We
                        FLORES v. HORNE                     1865
have already discussed the quite different focuses of the two
statutes. That Title III of NCLB operates in the same general
substantive area as the EEOA is not enough for us to hold that
the former was intended to replace the latter, particularly in
light of explicit statutory language to the contrary.

   Our analysis is further bolstered by the Supreme Court’s
similar analysis of a purported conflict between a civil rights
statute and a general Spending Clause-based statutory grant
program, like NCLB, in Blessing v. Freestone, 520 U.S. 329
(1997). In that case, the Court considered whether the reme-
dial scheme of Title IV-D of the Social Security Act displaced
a right of action under 42 U.S.C. § 1983. Id. at 339-40. The
Court held that a statute like Title IV-D could displace § 1983
actions in only two ways: “[E]xpressly, by forbidding
recourse to § 1983 in the statute itself, or impliedly, by creat-
ing a comprehensive enforcement scheme that is incompatible
with individual enforcement under § 1983.” Id. at 341.

   There is, as we have noted, no express repeal here. And
implied repeals of the remedial displacement kind are very
rare, as the Court recognized in Blessing. Id. at 346-47 (noting
only two such instances with regard to § 1983); see also Mid-
dlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n,
453 U.S. 1, 20 (1981) (detailing such an instance where the
“quite comprehensive enforcement mechanisms” of two fed-
eral pollution statutes rendered it “hard to believe” that Con-
gress intended to preserve § 1983 remedy for problems
covered by the statutes).

   Blessing also explicated an additional reason why NCLB
cannot supercede the EEOA: The EEOA provides an express
private cause of action, while NCLB does not. In Blessing the
Spending Clause statute’s “enforcement scheme” was limited
because it had “no private remedy — either judicial or admin-
istrative — through which aggrieved persons can seek
redress.” 520 U.S. at 348. The Court held that the substantive
statute could not “close the door” on § 1983, because a “plain-
1866                        FLORES v. HORNE
tiff’s ability to invoke § 1983 cannot be defeated simply by
the availability of administrative mechanisms to protect the
plaintiff’s interests.” Id. at 347-48 (internal quotation and
alteration omitted); see also City of Rancho Palos Verdes v.
Abrams, 544 U.S. 113, 121 (2005) (“[I]n all of the cases in
which [the Court has held that a general program did not pre-
empt a § 1983 cause of action] . . .the statute at issue . . . did
not provide a private judicial remedy (or, in most of the cases,
even a private administrative remedy) for the rights violat-
ed.”) (emphases in original); Wilder v. Virginia Hosp. Ass’n,
496 U.S. 498, 521 (1990) (no repeal where the programmatic
statute “contain[ed] no comparable provision [compared to
statutes in Sea Clammers and similar cases] for private judi-
cial or administrative enforcement”); Smith v. Barton, 914
F.2d 1330, 1334 (9th Cir. 1990) (“[T]he doctrine of [Sea
Clammers] only bars section 1983 claims that could have
been brought under a separate federal statute which provides
remedial devices sufficiently comprehensive to demonstrate a
congressional intent to preclude section 1983 claims.”); cf.
ASW v. Oregon, 424 F.3d 970, 977 (9th Cir. 2005) (holding
that even some statutes with administrative mechanisms to
protect plaintiffs’ rights cannot preclude § 1983); Price v. City
of Stockton, 390 F.3d 1105, 1115 (9th Cir. 2004) (same).46
Like the statute in Blessing, NCLB does not provide an
explicit private enforcement scheme.47 Applying the holding
  46
      The Superintendent also argues that the NCLB should be used to “as-
sist in the interpretation” of the requirements of the EEOA. If he meant
only that NCLB compliance is somewhat probative of EEOA compliance,
we would agree. He argues, however, that NCLB’s statutory scheme “sup-
plemented and defined” the EEOA’s “appropriate action” requirement
such that compliance with the former is also compliance with the latter.
We have just explained why that proposition is not so, and casting it as
an argument for modification rather than repeal makes no difference.
Defenders of Wildlife, 127 S. Ct. at 2533 n.8 (“It does not matter whether
this alteration is characterized as an amendment or a partial repeal.”).
   47
      Because we find the complementary nature of the EEOA and NCLB
clear, and because we do not wish to rule on a matter not squarely before
us, we do not decide whether NCLB affords an implied right of action,
although we note that some courts have concluded that it does not. See
Alliance for Children, Inc. v. City of Detroit Public Sch., 475 F. Supp. 2d
655, 658 (E.D. Mich 2007) (collecting such cases).
                        FLORES v. HORNE                      1867
of Blessing and similar cases, the existence of an explicit pri-
vate enforcement mechanism in one statute but not the other
strengthens our conclusion that NCLB did not “close the
door,” Blessing, 520 U.S. at 348, on suits such as this one.

   The second argument in this vein made by the Superinten-
dent and the Legislative Intervenors has more merit. That
argument is that, after NCLB, an order to perform a statewide
cost study of ELL program incremental costs, and fund
accordingly, may not be entirely sensible. While such an
order would not be an abuse of discretion, it is true that
NCLB’s monitoring protocols have encouraged the develop-
ment of substantial district-by-district data. This data may
make it easier, and more sensible, for a state like Arizona to
tailor some amount of funding to the particular incremental
costs associated with the ELL program in each district, rather
than to provide a uniform ELL increment to all districts
regardless of the distinct conditions in each district. It appears
that the Arizona Constitution would permit some degree of
such tailoring. See Roosevelt I, 877 P.2d at 814 (“[U]nits in
‘general and uniform’ state systems need not be exactly the
same, identical, or equal.”). That point, however, does not
avail the Superintendent and Legislative Intervenors, as they
did not move for such a limited modification of the judgment.
Instead, they argued that the district court should simply grant
complete relief from judgment.

   [15] In sum, just as no changes in fact have eliminated the
premises of the Declaratory Judgment, no changes in law
have done so either. The motion for relief from judgment,
then, depends on showing that Arizona is, in fact, in compli-
ance. And that question, in turn, depends on HB 2064.

           2.   HB 2064 and Actual Compliance

  Perhaps recognizing the flaws in HB 2064, the Superinten-
dent and Legislative Intervenors begin by arguing that the
1868                        FLORES v. HORNE
legality of the statute should not have been considered. That
issue, they contend, was “outside” of our mandate on remand.

   [16] The contention makes no sense. HB 2064 was enacted
as Arizona’s effort to comply with the Declaratory Judgment
and was so represented to the district court. That this charac-
terization of HB 2064 is correct is indicated in the statute
itself, which provides that it will not go fully into effect unless
the district court approves the statute as in compliance with its
orders. It would be very strange if, on remand, our mandate
to survey relevant changes of circumstances excluded such an
obvious change.

   Certainly, no portion of our mandate forbade such consid-
eration. “[A]lthough lower courts are obliged to execute the
terms of a mandate, they are free as to anything not foreclosed
by the mandate.” United States v. Kellington, 217 F.3d 1084,
1092 (9th Cir. 2000) (quotation omitted). We remanded for
the district court to hold an evidentiary hearing and explicitly
decided no other issue. The district court held such a hearing.48
There is no further mandate issue in this case.49
  48
      The Superintendent also argues that the district court generally dis-
obeyed the mandate by not making adequate findings of fact and conclu-
sions of law. We disagree. Although the Superintendent might wish that
the district court had made different findings and conclusions, the district
court nonetheless fulfilled its task sufficiently to satisfy the mandate.
   49
      Nor are there problems of ripeness or of forum. True, as the Superin-
tendent and Legislative Intervenors note, it is highly unusual for questions
of state compliance with federal school funding law to come before a court
in the first instance. The Department of Education has an extensive admin-
istrative hearing apparatus, 20 U.S.C. §§ 1234 et seq., and such cases
would ordinarily originate there. Here, however, HB 2064 was presented
to the district court as a ground for relief from judgment, and on its face
became fully effective only if approved by the district court. As part of its
inquiry, the court necessarily had to determine whether, on its face, HB
2064 satisfied the requirements of federal law; if not, the problems it was
designed to solve would only be exacerbated. Thus, there are no forum
problems here and, as HB 2064 became effective immediately, save for
the Group B weights, there is no ripeness issue.
                             FLORES v. HORNE                            1869
   Proceeding to the merits of the HB 2064 issue, we hold that
the district court’s conclusions of law regarding the statute
were not abuses of its discretion.50 The court held that HB
2064’s two-year funding cut-off was irrational, rendering it
inadequate to comply with the judgment and that, in addition,
several facial violations of federal law further compounded
the statute’s problems. Flores XI, 480 F. Supp. 2d at 1166.
We agree.51

    For similar reasons, the Legislative Intervenors’ contention that the dis-
trict court should have certified the question of HB 2064’s interpretation
to the Arizona Supreme Court is not well taken. They do not propound any
substantial question of interpretation that would justify certification,
instead only asserting generally that the statute might be “unclear.” Yet,
under Arizona law, a certification order must set forth “[t]he questions of
law to be answered.”ARIZ. REV. STAT. § 12-1863. Moreover, the argument
was raised for the first time in their reply brief and such arguments are
“generally deemed waived.” United States v. Anderson, 472 F.3d 662, 668
(9th Cir. 2006).
    50
       Because the Superintendent and Legislative Intervenors argue that the
district court should not have considered the legality of HB 2064 at all on
remand, they do not directly argue that HB 2064 satisfies the judgment
and so come close to waiving that argument entirely. But because they do
argue in the alternative that the district court’s decisions on HB 2064 were
substantively wrong, they have preserved the issue, and we will consider
it.
    51
       Whether the district court could have declared Arizona to be in com-
pliance immediately upon the passage of HB 2064 even if the law was
facially appropriate is not entirely clear, although we do not decide the
matter. Under the Castaneda framework adopted by the district court:
    If a school’s program, although premised on a legitimate educa-
    tional theory and implemented through the use of adequate tech-
    niques, 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.
Castaneda, 648 F.2d at 1010. HB 2064 itself suggested that the court
might allow the statute to be implemented “on an interim basis . . . to
determine whether the resulting ELL plans and available funding to imple-
ment the plans bear a rational relationship to the cost of implementing
appropriate language acquisition programs.” HB 2064 § 15(A).
1870                    FLORES v. HORNE
   [17] First, and most clearly, HB 2064’s two-year funding
cut-off alone renders the law inadequate as a funding scheme
rationally grounded in the costs of providing ELL programs,
as the district court held. Flores XI, 480 F. Supp. 2d at 1166.
There is absolutely no evidence in the record to support the
proposition that a student’s need for ELL programs invariably
vanishes after two years of instruction: Instead the evidence
is squarely to the contrary, as all witnesses testified that some
students would certainly take longer than two years to become
proficient in English. Yet funding for both the Group B
weights and the Arizona structured English immersion fund is
unavailable after two years. See ARIZ. REV. STAT. §§ 15-
756.01(J), HB 2064 § 6. All that remains thereafter is com-
pensatory instruction funding, see ARIZ. REV. STAT. § 15-
756.11, which cannot be used to support “normal classroom
instruction.” ARIZ. REV. STAT. § 15-756.11(G). To cut funding
to children who have not yet learned English after two years
of instruction, providing only for compensatory instruction —
which cannot occur during class-time and so leaves the incre-
mental costs of assistance for such children during the regular
school day unfunded — cannot comply with the judgment.
The district court did not abuse its discretion by holding HB
2064 inadequate in this regard.

   Second, as we have discussed above, the district court did
not clearly err in holding that HB 2064’s Group B weight
increase alone was not sufficient to meet the incremental costs
of ELL programming. Flores XI, 480 F. Supp. 2d at 1162.
The two grant programs created by HB 2064 might, however,
be able to make up the gap between the incremental costs and
the Group B weights, as the district court found, id., and so
these secondary programs become important to our analysis.
It is, first, important to note that these grant programs will be
of no significance at all unless they are funded and, as we
have noted, the statute does not require that any appropria-
tions be made for either program in coming years, although
it does provide an initial appropriation for the compensatory
                            FLORES v. HORNE                            1871
instruction fund. But even if the programs are funded, they do
not well serve Arizona’s effort at compliance.

   Specifically, the district court held that HB 2064 cannot
comply with the judgment because its grant programs violate
several provisions of federal education funding law. Id. at
1166. Penalties for such violations include limitations on fur-
ther grants and, in some cases, requirements that states pay
back some or all of the grants they have already received. See
20 U.S.C. §§ 1234 et seq. If such violations are present, HB
2064 cannot be adequate relief. Its implementation would
imperil federal funds for both non-ELL and ELL students.

   [18] The clearest violation of federal law discussed by the
district court is the state’s violation of 20 U.S.C. § 7902,
which, covering all of the pertinent federal grant programs,
provides that “[a] State shall not take into consideration pay-
ments under this chapter (other than under subchapter VIII) in
determining the eligibility of any local educational agency in
that State for State aid, or the amount of State aid, with
respect to free public education of children.” The Declaratory
Judgment in this case is directed at the funds distributed by
the state to local educational agencies, so § 7902 is applicable.
And HB 2064 manifestly requires that federal funds be con-
sidered with regard to distribution of funds from both the
structured English immersion fund, see ARIZ. REV. STAT.
§§ 15-756.01(I)(1)-(3), and the compensatory instruction
fund, see ARIZ. REV. STAT. § 15-756.11(E).52 HB 2064 there-
fore violates 20 U.S.C. § 7902 on its face.

  The Legislative Intervenors offer only one counter-
argument on this point, which we do not find persuasive:
  52
     The district court so held only with regard to the Arizona structured
English immersion fund. Compensatory instruction fund monies, however,
may not be allocated to “supplant any federal . . . monies . . . budgeted
for [E]nglish language learners as of February 23, 2006.” ARIZ. REV. STAT.
§ 15-756.11(E). That provision is therefore also in violation of federal law.
1872                        FLORES v. HORNE
They suggest that “free public education,” as used in 20
U.S.C. § 7902, is defined in relation to state law and that,
under Arizona law, the term does not apply to ELL programs.
So, they contend, 20 U.S.C. § 7902 does not apply to HB
2064’s programs.

   The federal definition of “free public education” is “educa-
tion that is provided — (A) at public expense, under public
supervision and direction, and without tuition charge; and (B)
as elementary school or secondary school education as deter-
mined under applicable State law, except that the term does
not include any education provided beyond grade 12.” 20
U.S.C. § 7801(21). The provision relies only on state law to
define “elementary or secondary school education,” not “free
public education,” and thus defers to states with regard to
which grades are embraced by the definition — not with
regard to subject areas or services. That the “as determined
under applicable State law” provision applies only to subsec-
tion (B) of the definition is indicated by the absence of a
comma after “secondary school education;” by the existence
of an “except” clause after the “as determined” phrase that
pertains directly to subsection (B); and by the absurd results
that would flow from the Superintendent and Legislative
Intervenors’ reading: Under their interpretation, states could
define entire subjects or programs out of the federal funding
statute’s reach by changing their state definitions of “free
public education.”

   [19] In any event, we find nothing in Arizona law to sug-
gest that ELL programming is, in any sense, not part of a
“free public education” in Arizona. The very existence of HB
2010 and HB 2064, and of the Group B weighting program,
indicates otherwise.

   [20] In sum, the district court did not abuse its discretion
in concluding that HB 2064 does not constitute compliance.53
  53
   The district court also held that HB 2064 facially violates the “supple-
ment not supplant” provisions of many federal education funding statutes.
                            FLORES v. HORNE                           1873
   [21] We therefore affirm the district court’s holding that
HB 2064 does not warrant relief from judgment.54 Indeed, to
the extent that improved conditions in NUSD might some-
what support relief from judgment, HB 2064’s flaws largely
negate their import: The stark two-year cut-off it creates on all
of Arizona’s ELL funding (save for compensatory instruction
funds which are no substitute for funding for day-to-day
instruction) combined with the very real possibility that the
funding scheme may trigger federal enforcement action, may
well retard or reverse whatever progress has been made. So,
to the extent that circumstances have changed after HB 2064,

Flores XI, 480 F. Supp. 2d at 1166. These provisions ensure that federal
funds are truly additional to state funds by providing that federal efforts
are to add to state programs, rather than simply replacing state funds with
federal money without actually increasing existing efforts. See Bennett v.
Kentucky Dep’t of Educ., 470 U.S. 656, 659 (1985) (discussing Title I
“supplement not supplant” provision); Dep’t of Educ., State of Hawaii v.
Bell, 770 F.32 1409, 1413 (9th Cir. 1985) (same).
   Because the two-year funding cut-off and the violation of 20 U.S.C.
§ 7902 each alone render HB 2064 insufficient to justify relief from judg-
ment, we need not decide whether the district court correctly decided the
“supplement not supplant” question, or whether, as the moving parties
argue, it did so prematurely because the local educational entities have not
yet spent any money. As we have explained, it is quite uncommon to con-
front whether a state funding statute complies with federal educational
funding law in the first instance. See 20 U.S.C. §§ 1234 et seq.; see also
Bell v. New Jersey, 461 U.S. 773, 791-92 (1983) (discussing the Depart-
ment of Education’s auditing process and holding that the “existence and
amount of liability [under such provisions] are committed to the agency,
in the first instance”). Doing so here was made necessary by the unusual
circumstance that HB 2064’s compliance with the Declaratory Judgment
turns in part on such questions. But we need not decide more than is
required. The somewhat more complicated issues raised by the “supple-
ment not supplant” provisions are not necessary to our inquiry, so we do
not decide them.
   54
      Flores and Arizona argue that HB 2064 also violates federal law by
requiring offsets of federal impact aid monies, see generally 20 U.S.C.
§§ 7701 et seq., and of school district desegregation monies. Because the
district court addressed neither question, we do not reach these issues.
1874                         FLORES v. HORNE
due to these two flaws they changed in large measure for the
worse.

   We note, however, that the district court has recently spo-
ken again to this issue in its current contempt order, Flores
XII, No. CV-92-596 (D. Ariz. Oct. 10, 2007), indicating that,
despite HB 2064’s flaws, Arizona may be nearing compli-
ance. In that order, the court again noted the problems with
HB 2064 that we have discussed but emphasized that, in its
view, they could be cured by abandoning the two-year cut-off
and by declining to consider federal funds in the grant-making
process. Id. at 3-4. The model-based funding structure of the
statute itself, the court held, was not at variance with the
Declaratory Judgment, and the incremental costs data that dis-
tricts are required to submit would, save for the flaws we have
noted, enable Arizona “to rationally fund the new models for
the ELL programs.” Id. at 4.55 There is reason, then, to hope,
if the models are in fact funded and the two changes noted by
the district court in its most recent order are made, that this
dispute, which has been in the courts longer than it takes a
student to go from kindergarten to college, may finally be
nearing resolution.

                      III.     CONCLUSION

   [22] Arizona did not appeal the original judgment and has
not complied with the Declaratory Judgment or with the bulk
of the post-judgment relief orders. For all the reasons we have
given, it is not inequitable to continue to require compliance.
We therefore affirm the district court.

  AFFIRMED.



  55
    We do not, of course, express any view on the merits of the district
court’s contempt order, as it is not before us in this appeal.
