Does Arizona's system serve? After 17 years, Flores English suit goes to high court

Mon Apr 20 00:54:15 UTC 2009

Opinion

Does Arizona's system serve?  After 17 years, Flores English suit goes
to high court
By Sarah Garrecht Gassen
Arizona Daily Star
Tucson, Arizona | Published: 04.19.2009

A class-action lawsuit to improve how Arizona educates
non-English-speaking students will be argued before the U.S. Supreme
Court on Monday. The case has evolved over the past 17 years into a
tug of war over judicial and legislative power and the reach of
national education reform.
Arizona's legislative leaders have retained Kenneth W. Starr, the
former solicitor general and special prosecutor who investigated
President Bill Clinton's ties to Whitewater, to argue two tacks: that
state and federal law and public policy have changed so substantially
since 1992 when Flores v. State of Arizona was filed that the original
case and its rulings are rendered obsolete; and that federal court
rulings directing the state Legislature to take particular actions
violate the separation of judicial and legislative powers.

Also weighing in is an attorney for Arizona Superintendent of Public
Instruction Tom Horne. In his appeal, Horne argues, in short, that the
system in place to teach English-language-learner, or ELL, students
English meets the requirements of testing and accountability under the
federal No Child Left Behind Act, and therefore the existing system
must be adequate, contrary to the district court's opinion.
It's a tangle with many players that boils down to this simple
schoolyard maxim: The state Speaker of the House and Senate President,
in addition to Horne, are trying to tell the federal district courts,
"You're not the boss of me."

Fundamentally serious case

The flash of big names like Starr and the judicial sexiness of power
struggles between courts and lawmakers — not to mention the weight of
the U.S. Supreme Court — threaten to overshadow the seriousness of the
Flores case. At its root are children who are not fluent in English,
but who are attending schools in the United States and who must learn
the dominant language. The close familial and cultural connections
between Arizona and Mexico, combined with immigration patterns, mean
that for many students, particularly those living close to the border,
Spanish is their first language. It bears repeating, however, that
English-language-learner is not synonymous with "illegal immigrant."

Flores v. State of Arizona began in 1992 in a class-action lawsuit by
parents of children in Nogales, Ariz. The suit's namesake, Miriam
Flores, was then a young girl who spoke Spanish. She spent the first
years of her school life in a bilingual English-Spanish classroom, but
then was placed with a teacher who spoke only English. Not
surprisingly, her academic work suffered. Her mother joined a civil
suit to force Arizona to fix how its public schools educated ELL
students, arguing that Arizona's system violated a 1974 federal Equal
Educational Opportunities Act, which says states must "take
appropriate action to overcome language barriers that impede equal
participation by its students in instructional programs."
Flores is in her early 20s, and the case named for her remains
unresolved. For the past 17 years, plaintiffs' attorneys from the
Arizona Center for Law in the Public Interest have argued that Arizona
has not taken "appropriate action" or devoted adequate resources to
ELL students, while the state Legislature has argued that it has.

Current system untested

Non-English-speakers, not surprisingly, do struggle in school. Classes
are taught in English, although schools are supposed to segregate ELL
students for four hours per day for English instruction. This system
is new, so its large-scale effectiveness is unknown.
Going by 2007 test scores on the Arizona's Instrument to Measure
Standards test, which is the standardized test students must take to
graduate from high school, ELL students are far behind
English-speaking students. For example, 33 percent of English-speaking
high school students, which includes those in language programs for
four or more years, failed the reading test. Compare that with the 85
percent of all ELL students who failed the reading test.

Cost studies rejected

In 2000, U.S. District Court Judge Alfredo Marquez ruled that the
method Arizona used to decide how much extra money to allot districts
to teach ELL students English was "arbitrary and capricious" and that
the system violated the "appropriate action" requirement of the Equal
Educational Opportunities Act, or EEOA. Throughout the case's history,
the Arizona Department of Education and others have conducted studies
to determine the true cost of ELL education, but the results have been
rejected as incomplete or insufficient. In 2005, the U.S. District
Court ruled that Arizona was in contempt for not fixing its system,
and levied fines.

In 2006, the Arizona Legislature passed a law that increased
per-student funding but also put a two-year limit on students'
eligibility for the extra funding, even though there is no guarantee
that a student will become fluent in a new language in two years. The
system also required school districts to use federal money designated
for ELL students before the state would kick in additional money. Such
requirements could put in jeopardy federal dollars needed by schools.
The plaintiffs appealed, and the Ninth Circuit Court of Appeals upheld
the appeal, saying the state's system may have improved since 2000 but
still fails to meet the standard. And here we are, with the case
before the U.S. Supreme Court.

Arguing for state's rights

Crafting a system that serves tens of thousands of individual students
throughout a diverse state is a Sisyphean task — no plan will serve
every student well. Add to that Arizona's severe budget problems,
federal funding requirements and the rock gets harder and harder to
push uphill.
But Starr was not hired to argue the merits of Arizona's ELL education
system. He was hired — and the state has paid his firm $400,000 in
retainers so far — to persuade the U.S. Supreme Court that the lower
courts are "commandeering" the power belonging to the state's
legislative body.
Instead of arguing solely on the merits of Arizona's ELL system, the
legislative leaders are, essentially, arguing that the federal
district court judge should not be allowed to force the Legislature to
take any specific action.

The push back against the federal court's power has attracted
friend-of-the-court briefs from conservative groups and attention from
high-profile right-wing activists such as Phyllis Schlafly of the
Eagle Forum, who in 2006 wrote a piece about the Flores case headlined
"Supremacist Judicial Mischief in Arizona." The Flores case has also
followed a winding road politically. The Arizona attorney general
urged the U.S. Supreme Court not to take up the case, saying it was
not universal enough to merit review because the facts were so
particular to Arizona. That argument did not prevail, but it prompted
Gov. Jan Brewer to chastise Attorney General Terry Goddard for arguing
a position she did not share — which prompted Goddard to respond that
the state attorney general does not serve at the whim of the governor.

More than 100,000 students

After all of the briefs and filings and high-powered legal
maneuverings are done, Arizona still must deal with a group of more
than 100,000 children who are in our public schools but don't have the
English language skills they need. Most of these children are U.S.
citizens and, even if they aren't, it behooves our communities to
ensure that each child can succeed in school because students don't
learn in isolation of each other.
The issues spiraling out of the Flores v. State of Arizona case pose
some interesting legal questions. But we should not be sidetracked
from the reason the lawsuit was filed to begin with: Children in
Arizona schools aren't receiving the quality of education they
deserve.

http://www.azstarnet.com/allheadlines/289177

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