Consent decrees have long been used by federal courts to vindicate basic constitutional and civil rights. In the years following the U.S. Supreme Court’s decision in Horne v. Flores, however, state defendants and courts have overstated that decision’s federalism concerns, threatening to weaken hard-fought institutional reform orders and consent decrees in areas like voting rights, educational equity, police and prison reform, and environmental regulation.
Institutional reform litigation is essential to protecting vulnerable communities against governmental harms — from limiting police officers’ use of chokeholds and other deadly force, to requiring that immigration authorities provide children with soap, blankets, and toothbrushes in detention. In many institutional reform cases, plaintiffs bring suit in federal court for violations of their federal rights and seek broad remedies to fix illegal state and local practices. Sometimes institutional reform litigation resolves by a consent decree — which functions both as a private settlement between parties and a judicial order. These court-enforced agreements provide a roadmap to bring state and local defendants into compliance with federal law.
That progress has been jeopardized by the weaponization of a 2009 Supreme Court case, Horne v. Flores, in which the Supreme Court considered a motion to terminate an institutional reform order. The lawsuit was originally brought by a class of English Language Learner (ELL) students who alleged that Arizona, its State Board of Education, and the Superintendent of Public Instruction violated the Equal Educational Opportunities Act of 1974, a federal law that requires states to take “appropriate action to overcome language barriers” in schools. In that case, the district court ordered the State to implement measures to improve ELL instruction. Years later, the State moved to terminate the order under FRCP (60)(b)(5) because, though it had not complied with the order, the legislature had recently enacted a bill that increased ELL funding. The lower courts denied the State’s motion, but the Supreme Court remanded the case, directing the district court to properly consider the changed circumstances — i.e. the new legislation — that might have rendered continued enforcement of the order inequitable. The Horne Court explained that institutional reform litigation raises sensitive federalism concerns that can affect local and state policymaking for many years. But, in directing courts to engage in a balancing test, the Court also explained that “[i]t goes without saying that federal courts must vigilantly enforce federal law and must not hesitate in awarding necessary relief.”
The holding in Horne v. Flores was not groundbreaking, and it certainly did not cast doubt on the constitutionality of institutional reform orders, whether arrived at by consent decree or a judicial order like the one at issue in that case. Nevertheless, critics of federal judicial oversight and institutional reform have misrepresented the Court’s holding and overstated Horne’s federalism concerns. Namely, critics take issue with how long such decrees operate; they would have plaintiffs advocate within the political branches rather than seek decades-long federal supervision that they contend impinges upon state sovereignty. Critics also argue that these consent decrees are undemocratic because they bind policymakers to the decisions of their predecessors and hamstring them from addressing the present-day needs of their constituents. But Horne v. Flores should not be read to needlessly limit the power of federal courts, and advocates of institutional reform should respond to the foregoing arguments with three principal defenses:
1. Consent decrees are often the only way for marginalized groups to vindicate their rights.
Advocates should emphasize that the human beings behind institutional reform litigation turn to federal courts in the face of grave and sometimes life-threatening harms. These are plaintiffs who often hold minority identities and who — by design — lack power to have their voices heard in the political process. Plaintiffs include, for instance, Black voters whose political power has been systemically denied and diluted across local, state and federal elections. In the town of Newbern, Alabama, Black voters had been deprived of the opportunity to participate in mayoral elections since 1965 — with mayoral seats “passed down” to almost all white residents for decades — until a 2024 institutional reform settlement in Braxton v. Stokes. Before the State of Louisiana entered into a 1992 consent decree in Chisom v. Edwards to remedy illegal vote dilution in Orleans Parish, Black voters were not represented on the Louisiana Supreme Court for 179 years. And — on the federal level — until a district court ordered the creation of a majority-Black congressional district in 1992, Alabama had elected no Black representatives to the United States Congress “[f]or the first 115 years following Reconstruction.”
Other disempowered groups who rely on institutional reform are Black and Brown children whose schools are still racially segregated and woefully underfunded compared to schools attended by their white peers, low-income communities subject to racial profiling and police brutality, and incarcerated people who face overcrowded prisons and physical abuse. Not only have these plaintiffs been stripped of sufficient power to have sway within their state’s legislative and executive bodies, it is often these very parts of government that are responsible for perpetuating the harms they challenge.
Where it’s simply not feasible to obtain immediate relief through the political branches, federal courts should not shut the courthouse door to marginalized groups and abdicate their duty to enforce basic rights.
2. Essential to our democracy, consent decrees protect constitutional and civil rights, not policy choices.
Consent decrees are not “undemocratic.” To the contrary, institutional reform claims arise under laws that are fundamental to our democracy and the protection of our country’s most vulnerable: the Voting Rights Act, the Civil Rights Act, the Fourth Amendment, the Eighth Amendment, and the Equal Protection and Due Process Clauses.
The argument that policymakers should not be held to the decisions of their predecessors ignores that policymakers are not entitled to violate federal law at any point. Indeed, consent decree mandates such as desegregating a school, providing incarcerated people with clean water or ending discrimination in the workplace do not constitute “policy choices” that are up for debate, regardless of evolving policy preferences in the electorate. A Secretary of State who enters into a consent decree to remedy violations of the Voting Rights Act does not meaningfully restrict the policy decisions of a subsequent Secretary of State because they are similarly prohibited from flouting that federal law. Moreover, such consent decrees serve policymakers and their successors, who could otherwise be saddled with the costs of complex litigation and the stigma of being found liable for a civil rights violation.
3. While implementing durable remedies under consent decrees may take time, there is also a mechanism under the Federal Rules that affords state actors flexibility in their compliance.
Institutional reform requires state and local actors to fix entrenched and seemingly intractable systems, root and branch. Such a “durable remedy,” as articulated in Horne v. Flores, is necessary to ensure that constitutional violations are addressed and that liable state actors won’t immediately revert to committing the same violations once the decree is lifted. A voting rights consent decree, for example, may require legislation that redraws voting districts, followed by a few election cycles and other indicia that shows that the illegal vote dilution at issue has been remedied. A school desegregation consent decree may require significant adjustments to school budgets, restructuring the school curriculum, and constructing new facilities. While these measures can take decades to implement, they obviate the need for piecemeal litigation and ensure that the state achieves a long-lasting solution.
Though critics bemoan the length of time that consent decrees remain in place, the slow pace of change is often attributable to state actors defying the terms of the decree in bad faith and refusing to uphold their end of the bargain. Take, for example, a consent decree between the United States and the State of Michigan that required the State to improve conditions related to healthcare, overcrowding, and safety in three correctional facilities. Because the State violated various provisions of the consent decree and failed to “exhibit[] the commendable history of cooperation and good faith” seen in other cases, the decree remained in place for longer to ensure the State’s compliance. By contrast, where defendants take corrective action in good faith, they can successfully move the court to end judicial supervision. This was the case in Consumer Advisory Board. v. Harvey, where a state mental health institution in Maine entered into a consent decree to address allegations of inhumane treatment and involuntarily confining residents. The district court held that the consent decree was not meant to last in perpetuity and granted termination because the State had “exhibited a demonstrable commitment to achieving compliance with the Decree over the last decade.”
To the extent that state actors are truly unable to perform their core governance functions, or that circumstances on the ground have changed such that the terms of the decree are no longer equitable and require modification, FRCP 60(b)(5) provides a safety valve for state actors so long as they meet their evidentiary burden. In Parton v. White, the State of Missouri successfully moved for modification of a correctional facilities consent decree, with the Eighth Circuit agreeing that unanticipated increases in the prison population made compliance with the original decree “substantially more onerous and detrimental to the public interest.”
Finally, it is notable that institutional reform compliance has evolved over time. In the past, this form of litigation prescribed rigid, top-down remedies; now, it is often characterized by collaboration between the parties and stakeholders and ongoing revision.
Thus, FRCP 60(b)(5) provides a well-worn path for state actors to modify or terminate an institutional reform order to address Horne v. Flores’s federalism concerns.
Conclusion
Whether to violate a person’s constitutional or civil rights is not an issue about which policymakers can reasonably differ. And consent decrees ensure that culpable state actors — no matter who personally holds those offices — fulfill the contractual terms to which they agreed. The ultimate dictate of Horne v. Flores is that courts must balance safeguarding federal rights with state and local interests when conducting the FRCP 60(b)(5) analysis. The Court’s cautions regarding federalism should not be read to upend this framework or erode an essential area of civil and constitutional law.
Advocates can and should highlight the human beings behind institutional reform cases, as they are often without other recourse outside of federal courts to challenge serious state-sanctioned harms. And if there is a legitimate reason why enforcement of a decree is inequitable — be it budget fluctuations, population shifts, or changes to underlying circumstances — those local practicalities can be addressed through FRCP 60(b)(5), which allows institutional reform decrees to be malleable upon a proper evidentiary showing.
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