Arizona: English-Language Learner Case Framed as Civil Rights Enforcement Issue Before Supreme Court

Mon Apr 20 17:33:12 UTC 2009

English-Language Learner Case Framed as Civil Rights Enforcement Issue
Before Supreme Court

by Karen Branch-Brioso
Apr 20, 2009, 08:40

At a time when children with limited English skills are among the
fastest-growing groups in public schools, the U.S. Supreme Court today
will hear a case that could greatly impact the way states educate
English-language learners. On one side: Arizona’s top education
official and legislative leaders. They want federal courts to release
them from a 2000 consent decree that said their English-language
learner (ELL) programs violated ELL students’ civil right to an equal
education — because they were so underfunded they couldn’t effectively
teach the students English or other subjects. They say Arizona has
greatly improved its ELL programs, particularly in the Nogales
district along the U.S.-Mexico border where the lawsuit got its start.

On the other: Miriam Flores, a Nogales mother who joined the suit in
1996 after her daughter’s grades dropped in the third grade, when
bilingual classes shifted to English-only. Her daughter, also Miriam,
is 22 now — far beyond the reach of the decision to be made by the
Supreme Court justices.  Still, the elder Flores said in an interview
in Spanish, “I’m nervous because it’s something so much bigger now.”
If the stack of briefs filed in the Supreme Court is an indicator, the
case indeed is far more significant today.

Horne v. Flores pits Arizona politicians and school officials against
each other. Nationwide, education researchers are in opposite camps on
whether increased funding matters. Civil rights groups are with
Flores. Limited-government proponents side with Horne. Advocates of
bilingual education, where students are schooled at least some of the
time in their primary language, are backing Flores. Supporters of
English-immersion education — where students learning English study
all subjects in English alone — support Horne. Arizona voters adopted
an English immersion policy in 2000, months after the state entered
into the federal consent decree. The approach largely eliminated the
ability to use bilingual education in public schools.

But the major questions in the case do not focus on the educational
method. More at issue:

Whether Arizona needs to specifically earmark for ELLs all of the
funds necessary to operate its ELL programs, as the Ninth Circuit
Court of Appeal has required.

And, whether a state’s federally approved plan for ELLs under the
federal No Child Left Behind Act (NCLB) is, in itself, enough to
satisfy the civil rights standards for ELLs in the Equal Educational
Opportunities Act.

Attorneys for Thomas Horne, Arizona’s superintendent of public
instruction, say its ELL education system has improved mightily. They
attribute that to more funding, better teacher training, the
English-immersion system, and standards and testing established under
NCLB. As a result, they say, there is no civil rights violation. “If
we win outright, what it’s going to mean is federal oversight will
cease and Arizona will go about the business of educating its kids —
and no longer be under this gun of providing earmarked funding, when
our view is it’s not necessary anymore,” says Eric Bistrow, the
Phoenix-based lawyer representing Horne.

Horne is backed by the Arizona House Speaker and Senate President,
whose chief lawyer is Kenneth Starr, the Pepperdine University law
school dean and former House Independent Counsel who tangled with
President Bill Clinton in the Monica Lewinsky scandal. Their brief
says the lower courts overstepped their power in telling Arizona it
must specifically set aside funding for all its ELL program
operational needs. “The lower courts’ approach will create perverse
incentives to keep students languishing in special-language programs”
since it’s based on the number of students in the programs, rather
than those who become English-proficient.

And, if they lose and must earmark ELL funds? Bistrow says opponents
suggest Arizona would need to spend $300 million more on ELLs: “This
fight is more than an academic exercise. It’s about real money.” Tim
Hogan, executive director of the Arizona Center for Law in the Public
Interest and a co-counsel for Flores, estimates the amount at closer
to $200 million.  But funding is only half the issue. Hogan believes
there would be significant national fallout if the Supreme Court
decides that a state’s compliance with its own No Child Left Behind
plan means it also complies with the Equal Educational Opportunities
Act.

“That’s a huge issue,” says Hogan, noting that under the EEOA,
individual students like Miriam Flores have a right to sue, while No
Child Left Behind provides no such right. “That would have a serious
impact on students’ ability to vindicate their civil rights under the
EEOA.”  The Justice Department — charged with enforcing the EEOA — has
sided with Flores on that issue. So has the National School Boards
Association in its brief that said the federal courts’ historical
enforcement of the civil rights law is even more important today.
“With ELL populations growing in more states and school districts
nationwide, this would be a particularly inopportune time for the
court to abdicate its crucial responsibility in this regard.”

There were about 5 million limited-English-proficient students in
public schools in the 2005-2006 school year, according to the National
Clearinghouse for English Language Acquisition and Language
Instruction Educational Programs.  Tom Hutton, senior staff attorney
for the National School Boards Association, says allowing NCLB to
serve as the default standard for EEOA “could be an enormous can of
worms” that could impact civil rights protections for other groups
addressed in both laws — including the disabled.
“How would this play out in the special education context? I really
have a hard time believing the court would go there,” Hutton says.

 But Arizona’s legislative leaders said in a brief the EEOA’s ban
“against discrimination, deliberate segregation, and forced busing
remain largely (if not entirely) unaffected by NCLB.”  Back in
Nogales, Miriam Flores wonders what it will mean for her youngest
daughter. Her oldest daughter, Miriam, is now studying at the
University of Arizona and applying to nursing schools across the
state.

 Her youngest, Isabella, is 5. She’ll start kindergarten in the fall.
“I’m wondering what’s going to happen with Isabella. She doesn’t speak
hardly any English,” said the elder Miriam Flores, who fears the
impact of a recent Arizona law that now requires ELLs to spend four
hours a day learning English, limiting their time in other subjects.
“Isabella loves music. She says, ‘I want to be in music and band.’ If
she can’t get out of the ELL programs, then she won’t be able to
develop that talent.’’ Miriam Flores, the daughter, says some people
back home in Nogales tell her nothing much has changed for ELLs. But
some friends, who are schoolteachers, say they’re receiving special
training now to help teach second-language learners. “I’m definitely
sure it improved since I was in elementary school,” she says. “I’m
really hoping it does eventually become a lot better.”

http://diverseeducation.com/artman/publish/article_12498.shtml

-- 
**************************************
N.b.: Listing on the lgpolicy-list is merely intended as a service to
its members
and implies neither approval, confirmation nor agreement by the owner
or sponsor of
the list as to the veracity of a message's contents. Members who
disagree with a
message are encouraged to post a rebuttal. (H. Schiffman, Moderator)
*******************************************