US Supreme Court to Decide Extent of Federal Court Control over Education

[Harold Schiffman]

Supreme Court to Decide Extent of Federal Court Control over Education
Tuesday, April 21, 2009
By Matt Cover


(CNSNews.com) – The Supreme Court on Monday heard arguments in a case
that will determine whether federal judges have the power to
restructure local school programs even after they have been defined by
state legislatures. The case, Horne v. Flores, involves the
English-language instruction program in Nogales, Ariz., for students
identified as “English Language Learners (ELL).” Nogales is a border
town and many of the the students in the school district speak Spanish
as a first language. In 2000, U.S. District Court Judge Alfredo
Marquez found that the ELL program violated the federal Equal
Education Opportunity Act of 1974, which says that students may not be
denied educational opportunity based on the failure of a school
district to take “appropriate action” to remedy language barriers.

“No state shall deny equal educational opportunity to an individual,”
the law reads, “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.” Marquez
ruled that Nogales’ ELL program was not adequately funded and that the
school district needed to fund the program based on its needs. The
judge said that the district should conduct a study to determine what
an adequate level of funding would be. Arizona and the Nogales School
District agreed with the decision, and asked the Arizona Legislature
to increase funding for ELL programs. Lawmakers took repeated action
to increase funding, beginning in 2000, only to have the federal court
keep issuing rulings that Arizona’s cost study and its funding scheme
were inadequate.

In 2001, the Legislature passed HB 2010, which set ELL funding levels
to those prescribed in the first study and provided for a newer, more
comprehensive study, according to court documents. The federal court
again ruled Arizona’s efforts did not constitute “appropriate action”
under the 1974 law. When Judge Marquez set a deadline of 15 days after
the start of the 2006 Arizona legislative session for the state to
comply with his order, the Arizona Legislature passed a bill (HB 2064)
establishing dedicated funding for the ELL program as well as a
special task force within the state Department of Education to develop
ELL teaching criteria and to monitor ELL students.

Then-Gov. Janet Napolitano, who had vetoed three previous efforts,
disagreed with the Legislature that HB 2064 met the judge’s demands,
but allowed the bill to become law anyway, saying that she would
rather see the matter go back to court than continue to fight with
lawmakers. “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,” Napolitano said in
a statement accompanying the bill. Judge Marquez, meanwhile, again
found that Arizona was not taking “appropriate action” as required by
the 1974 law.

Arizona School Superintendent Thomas Horne appealed the 2006 ruling to
the 9th Circuit Court of Appeals that HB 2064 constituted “appropriate
action” under the law, adding that the federal No Child Left Behind
law had made the lower court’s previous ruling moot, because it had
defined what ELL programs should look like. The 9th Circuit disagreed,
sending the case back to Judge Marquez, who has essentially been
running the Nogales ELL program since 2000. The 9th Circuit agreed
that Arizona’s funding system had not changed enough to constitute
“appropriate action.”

“[T]he fundamentals of the Arizona school funding system (have not)
changed in any way that undermines the district court’s original
conclusion,” Judge Marsha Berzon wrote for the court. At issue now is
who gets to decide what constitutes “appropriate action” -- the
Arizona Legislature or the federal courts. Horne and Arizona’s
legislative leaders argue that since the 1974 law doesn’t define what
actions are appropriate, it is up to Arizona’s Legislature to define
the goals of the ELL program and to decide how to fund them -- not
Judge Marquez.

The plaintiffs, including the office of former Gov. Napolitano, argue
that the state must meet Judge Marquez’s test in order to comply with
the law. The original plaintiff, Miriam Flores, is no longer enrolled
in Nogales’ schools. Richard Samp, chief counsel for the Washington
Legal Foundation, told CNSNews.com that the real issue is whether a
federal judge can direct a state’s education programs. “The real issue
raised by this case is: Is it appropriate for courts to be taking over
educational policy and running school systems for decades on end,”
Samp said.   Marquez should be deciding cases based on what the law
says, according to Samp, whose foundation filed an amicus brief in the
case. If the law doesn’t define “appropriate” then the judge can’t
define it either.

“The law at issue doesn’t say anything about what the standards are,”
he explained. “So how can you determine that they (Arizona) are not
doing enough based on a law that doesn’t really say what enough is.”

http://www.cnsnews.com/public/content/article.aspx?RsrcID=46939
-- 
**************************************
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)
*******************************************