                   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
                                               No. 07-15603
STATE BOARD OF EDUCATION, and
                                                   D.C. No.
                                         
its individual members in their
official capacities,                         CV-92-00596-RCC
              Defendants-Appellees,          District of Arizona,
                                                    Tucson
THOMAS C. HORNE, Superintendent
of Public Instruction,
               Defendant-Appellant,
                 and
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,
                          Intervenors.
                                         




                              4101
4102                    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.
                                               No. 07-15605
SPEAKER OF THE ARIZONA HOUSE OF
                                                   D.C. No.
REPRESENTATIVES and PRESIDENT OF
THE ARIZONA SENATE,                         CV-92-00596-RCC
                                             District of Arizona,
             Intervenors-Appellants,
                                                    Tucson
                 and
                                                   ORDER
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.
                                         
                     Filed April 17, 2008

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


                            ORDER

  The full court has been advised of the petitions for rehear-
ing en banc. No judge of the court has requested a vote on en
banc rehearing. See Fed. R. App. P. 35(f). Judges Berzon and
Rawlinson voted to deny the petitions for rehearing en banc
and Judge Fletcher so recommended.
                       FLORES v. HORNE                        4103
  The panel has voted to amend its opinion and to deny the
petitions for rehearing with the following amendment.

  The opinion filed February 22, 2008 and published at 516
F.3d 1140 is amended as follows:

   On page 1178, add the following paragraph to footnote 52
following the last sentence of the footnote:

       Our conclusion is unaffected by 20 U.S.C.
    § 6321(d), which provides an exception to some fed-
    eral fiscal requirements for a narrow class of state
    funds expended for programs benefitting disadvan-
    taged children. Arizona receives funding from sev-
    eral other federal programs. We need not decide if
    § 6321(d) could ever affect the application of
    § 7902, because § 15-756.11(E)’s consideration of
    federal funds is not limited to funds covered by
    § 6321(d). So, even if the exception were relevant
    here, it would not excuse Arizona from complying
    with federal fiscal requirements which it does not
    cover and § 15-756.11(E) would thus still violate
    § 7902. In any event, it is far from clear, although we
    need not decide the matter, that the compensatory
    instruction funds would be covered by the exception
    in the first place. See 20 U.S.C. § 6321(d) (limiting
    the exception to “supplemental State . . . funds
    expended . . . for programs that meet the intent and
    purposes of this part”); see also 34 C.F.R. § 200.79
    (defining the boundaries of the “intent and purposes”
    exception).

                       *    *    *

No further petitions for rehearing or rehearing en banc will be
entertained. The mandate shall issue in due course.
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