Arizona case: Supreme Court doubful of progress on English-learners

[Harold Schiffman]

Supreme Court doubful of progress on English-learners

Howard Fischer, Capitol Media Services

April 20, 2009 - 6:31PM


Supreme Court justices expressed some skepticism Monday over whether
Arizona lawmakers have done enough to absolve the state of further
obligations to help students learn English. Justice Stephen Breyer
questioned the assertion by Kenneth Starr, who represents state
legislators, that the situation has changed since a federal judge
ruled in 2000 that the state was not complying with the federal Equal
Education Opportunity Act. That law requires states to "take
appropriate action to overcome language barriers that impede equal
participation by its students in its instructional programs.''  Among
those changes, Starr argued, was approval of a new funding plan in
2006.

But Breyer recited statistics showing that Arizona students with
limited English proficiency are doing far worse in tests of reading
and even math than other youngsters. And the justice also noted that
the state's current extra funding for students classified as "English
language learners'' is less than $400 despite some studies showing it
actually takes far more than that to make youngsters proficient.
Starr, however, said all of that is legally irrelevant.

At a basic level, Starr said the original lawsuit dealt only with
problems that students in the Nogales Unified School District who were
not proficient in English were having in school. Starr said there is
evidence that students there are, in fact, doing better.

More to the point, "a sea changed occurred in education policy'' in
Arizona since the original 2000 ruling, with the old system of
bilingual education replaced with "structured English immersion.''

Breyer, however, wasn't buying the argument that things are, in fact,
better in Nogales. He said English learners in that district fail
certain standardized tests at a much higher rate than other
youngsters.

"Now, I'm sure that progress has been made,'' Breyer said. "But it
doesn't seem to me, looking at that kind of thing -- and the record is
filled with that kind of thing -- that you could say that the
objectives were achieved.''

Starr responded that the court should consider a different test,
saying this one shouldn't be taken "too seriously.''

Then there is the question of why a problem in Nogales should force
lawmakers to provide more money to schools throughout the state.

"I find it bizarre that we are sitting here talking about what the
whole state has to do on the basis of one district which is concededly
the district that has the most non-native English speakers and has
been a problem district all along,'' said Justice Antonin Scalia.

But Sri Srinivasan, arguing before the high court on behalf of the
parents who first filed the 1992 lawsuit, said it was the attorney
general's office which, in essence, agreed that whatever solution is
appropriate for Nogales should be applied to English learners
throughout the state. Srinivasan said that is based on state
constitutional requirements for equal funding, meaning Arizona can't
give one district more money to help students learn English that it
doesn't provide for all.

Chief Justice John Roberts suggested there was something unorthodox,
if not improper, about the attorney general agreeing to have the
judgment against Nogales assessed against the entire state.

"It's hard for the attorney general to get funding from the
legislature for all he wants to do,'' Roberts said. "This is a way for
him to get it, to go to the legislature and say, 'Look, you don't have
a choice.' ''

One central question the Supreme Court will have to decide is exactly
what the federal educational opportunity law requires Arizona to do.

"All that is required ... is, in fact, good faith efforts towards
compliance,'' Starr argued. But Srinivasan said the law "requires
efforts that are in fact reasonably calculated to overcome language
barriers,'' he said.

Everything else aside, Justice David Souter said one thing is working
against the argument by legislators that they have now done enough, at
least in part because of the 2006 law boosting funding. Souter pointed
out that a trial judge rules and an appellate court agreed that,
whatever the merits of the 2006 law, two of the provisions were
illegal.

One limits extra funding for each English learner to no more than two
years. The other requires school districts to first use other federal
dollars to help teach English before being eligible for the additional
state aid.

Starr responded by saying Arizona is in compliance with the 2002
federal No Child Left Behind law, which he said essentially replaces
any requirements of the earlier education opportunity law.

But Justice John Paul Stevens noted that the attorney general's
office, which officially represents both the state and the state Board
of Education, agrees that the two provisions have to be changed to
make the 2006 law legal.

http://www.eastvalleytribune.com/story/138190
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