English Language Learners Lawsuit

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A new motion has been filed in the long legal battle over the adequacy of Arizona’s educational programs for English Language Learners. Tim Hogan, an attorney for the plaintiffs in Flores v. Arizona, discusses his motion for an evidentiary hearing in the case.

Ted Simons: The U.S. district court that ordered state officials to adequately fund programs for English language learners has been asked to decide if that order is still relevant. In June the court remanded the case back to justice -- district court, and just last week an attorney representing parents of ELL students asked the court for an evidentiary hearing. At issue is whether or not circumstances in the case have changed since it was filed in 1992 on behalf of ELL students in the Nogales unified district. In 2000 the U.S. district court ruled that Arizona was violating the federal equal educational opportunities act because state spending for the special needs of ELL students was arbitrary and not related to the actual costs of ELL instruction. Since then, state funding has increased and the method of teaching the ELL students has changed. The court is being asked to decide if that's enough to satisfy its order. Here now is Tim Hogan, executive director of the Arizona center for law in the public interest, an attorney for the plaintiffs in this case, known for a long time as Flores v. Arizona. Good to have you here. Thanks for joining us.

Tim Hogan: Thank you.

Ted Simons: This has been a long time. Give us a capsule summary, if you can, if you will, of where we've been so far.

Tim Hogan: It is a long time, I'm not sure there's anything like a capsule that captures it all. But as you noted, the case was filed in 1992, alleging that the state was failing to comply with the equal educational opportunities act, which by the way says that states have to take -- and the key here is appropriate action. Those are the words Congress used -- to help children overcome language barriers so they can participate equally in instructional programs in public schools. So it's not just about learning English, it's about participating equally in the instructional programs, and of course you've got to learn English to be able to do that. The district court judge found in our favor in 2000, and eventually the defendants in the case, the legislature, superintendent Tom Horne, claimed circumstances had so changed since 2000, that it was no longer in the public interest to require them to comply with the judgment to adequately fund these programs. The Supreme Court decided to accept their appeal last January, it was argued in April, and as you noted, the Supreme Court issued its decision in a 5-4 split among the justices in late June of this year. And basically the Supreme Court said, well funding really isn't the issue. What you should be focusing on, district court judge, is the quality of the programming. And whether the programming is effective. And when you do that, after we send the case back to you, you should be looking at a number of factors. Increases in funding, a new methodology for instructing English language learners, no child left behind, and then also reforms that have occurred in the Nogales school district, which is where the plaintiffs come from.

Ted Simons: And you're saying those changes still aren't enough.

Tim Hogan: That's right. To the extent that the defendants in this case, the legislature and Mr. Horn are asking on equitable grounds to get out from complying with the funding judgment and saying it really no longer applies to them, you have to also demonstrate the state itself is complying with the equal educational opportunities act on a statewide basis. And we're saying they're not. By virtue of a number of changes that the state has imposed on school districts throughout the state.

Ted Simons: Didn't-- If I read correctly, it sounded like a Supreme Court was saying didn't seem all that excited about the state mandate. Putting this on to the entire state. It sound as if they were saying that it's Nogales as opposed to the state. Did I read that correctly?

Tim Hogan: You did. Except for the very last part of this decision said that this order should be the focus of this proceeding on remand should be on Nogales. Unless the court, the district court, concludes that the state itself is committing violations of the equal educational opportunities act. That's exactly what we intend to show, among other things, when this case is heard again by the district court judge.

Ted Simons: One of those violations you claim is segregation in terms of the immersion program for English language learners. Segregation a pretty powerful word when it comes to education. How are you seeing that?

Tim Hogan: The state in 2006, the legislature enacted a law that requires English language learners to actually be segregated, at least for their first year, and then a task force decided to extend that to later years for English language learners. Those students are to be segregated from the rest of the student population, for the purposes of learning English language development for four hours during the school day. Well that's over two-thirds of the typical school day. And so at the elementary school level for young kids particularly, because they're assigned to a single teacher for the entire day, those kids are going to be segregated from the rest of the school environment and the rest of the children in the school for basically the entire school day while they're being taught English. And not being provided much access to the academic curriculum. Courts have said it's OK to segregate kids temporarily for the purposes of teaching them English. We're saying here even though there's no research to speak of that supports this four-hour model, we're willing to give that a chance to work for first-year English language learners. But if children aren't reclassifying and becoming English proficient by the end of the first year, you can't segregate them any longer. The stigma attached to that is going to last their entire lives. We're already hearing that from the field, that these kids are going to be labeled and not succeed academically.

Ted Simons: Separate from that, superintendent Horne has figures that seem to show kids reclassified as proficient, that number is 30% higher since the program started. That's pretty tangible stuff there. How do you respond?

Tim Hogan: We've only got one year of data. We went from classification rate of about 22% to a classification rate of 28%. For the year that the models were implemented. Which is just this last year. We're now in the second year of implementing these models. So that converts to a 30% increase in the reclassification rate. But without some data going forward about whether these kids are just being taught to pass the proficiency test and whether they're going to end up going back into the English language learner program, whether they're going to succeed academically, whether they've been taught enough academic English to succeed academically, nobody knows because the data isn't there yet. And actually, we've made that point in the filing we made in court last week, that you've got to wait and see what happens here before you can draw any conclusions about the effectiveness of these models.

Ted Simons: How long do you wait? How much data do you need?

Tim Hogan: Well, on that score, to determine whether the four-hour model for even the first year is having a salutary effect, you've got to wait at least three years. Because these kids get tested for two years after they exit the English language learner program. And so after two more years, you'll know whether or not they're being tested as proficient our not, whether the English is staying with them and whether they're doing well on the the AIMS test. Comparable to their peers, because there's no reason to expect these children to perform any differently than their peers on the AIMS test, if they're -- if they've learned English.

Ted Simons: I know superintendent Horne and those in the legislature that see things his way say that things have improved in Nogales, whether it's money that's been added, it's no child left behind accountability that's been added, just the general Nogales district doing things to change what was 17 long years ago, there are improvements, things are getting better. So this is not necessarily needed. The court is getting involved is not necessarily needed. That's what they're saying. Why are they wrong?

Tim Hogan: There's no question, and we conceded that Nogales was doing better, particularly at the lower grade levels. Kids were learning English faster, and they were performing better academically. But as you moved up in grade levels at Nogales, and this hasn't changed, performance dropped off significantly. To where even the high school was rated by the Arizona department of education as one of the poorer performers in the state of Arizona for English language learners. Something like 550th out of 600 and some schools in the state. That's not good. The Supreme Court looked at that and said well that could be for a variety of reasons. Gangs, drug abuse, and things like that. The fact remains performance is not uniform across all levels in the district.

Ted Simons: Thanks for joining us. We appreciate it.

Tim Hogan: Thank you.

Tim Hogan:Attorney for the plaintiffs in Flores v. Arizona;

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