Flores v. Arizona

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State Superintendent of Public Instruction Tom Horne and Tim Hogan, executive director of the Arizona Center for Law in the Public Interest, revisit Flores v. Arizona—the original court case that questioned the adequacy of the state’s education of English Language Learners. The discussion involves the primary points of contention and how the state has addressed the problem.

Jose Cardenas:
Good evening. I'm Jose Cardenas. Welcome to "Horizonte." Tonight meet the new Chief in charge of the War on Drugs in our state. And a look back at the original case which started the English language learners issue in Arizona. Those stories coming up next on "Horizonte."

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Jose Cardenas:
During the past year in Arizona, officials have seized 1.2 million pounds of marijuana, more than in any other state. The Drug Enforcement Administration announced a new head of the Phoenix division to lead the fight against drugs. Joining me is special agent in charge Elizabeth Kempshall. Welcome to "Horizonte."

Elizabeth Kempshall:
thank you very much.

Jose Cardenas:
You have had a long career. Tell us about your background.

Elizabeth Kempshall:
Hired in Atlanta, Georgia, transferred to Las Vegas, Nevada. There to California, from there transferred to Virginia where I joined the international training bureau. From there to Miami, Florida, Washington D.C., Houston, Texas, and now Arizona.

Jose Cardenas:
From what I understand of your bio, you have done it all can including undercover work.

Elizabeth Kempshall:
That's correct.

Jose Cardenas:
That was in Las Vegas?

Elizabeth Kempshall:
Yes, it was.

Jose Cardenas:
It must have been a little different than Georgia.

Elizabeth Kempshall:
It was a lot of fun.

Jose Cardenas:
In Arizona, you have been here since July.

Elizabeth Kempshall:
Yes.

Jose Cardenas:
Most recently in Texas.

Elizabeth Kempshall:
Yes, sir.

Jose Cardenas:
How do you compare the two just overall, and then we will get into specifics.

Elizabeth Kempshall:
Houston was a perfect training ground for me before I game to Arizona. Very similar, and they're both along the southwest border which is our major problem in the United States. More than 90 percent of the drugs coming in the United States flow across our southwest border, and my experience in Houston made me more prepared for the experience I am going to have here in Arizona.

Jose Cardenas:
What about in terms of the major areas of transit and by that I mean the types of drugs coming across, how does Arizona compare with Texas?

Elizabeth Kempshall:
Believe it or not Arizona has had more marijuana seized in the past year than Texas has. We have had, like you indicated earlier, more than a million pounds of marijuana seized. That is relatively close to the amount seized in Texas. We have a problem here in Arizona, and we're prepared to confront that problem.

Jose Cardenas:
Why would that be the case, Arizona with a smaller border and obviously no ports would be a more major source of marijuana smuggling than Texas?

Elizabeth Kempshall:
Recently a major push on both sides of the border, from the Mexican and U.S. officials, there has been a major attack on our border to prevent the drugs coming across the border in Texas, and that created somewhat of a balloon effect, which pushed the traffickers to bring their drugs across the border here in Arizona. We are prepared to work with our foreign counter-parts plus our state and local federal partners here in Arizona to mount a strategic attack against these trafficking organizations.

Jose Cardenas:
Marijuana is a big one here, but is there anything unique to Phoenix, unique challenges that you have experienced?

Elizabeth Kempshall:
Arizona right now, because we have no checkpoints in Arizona at this time, I understand they are coming in the future, the traffickers are using Arizona as their path of least resistance to bring their drugs through our state and disperse is to the rest of the United States. The drugs don't stay here very long. They come in for a very short period of time and then they're dispersed. We have a number of transportation cells here in Arizona. It is easier to go after a trafficking organization based in your own area, whereas we might have different aspects of that organization offering in our state and they're not handling the drugs very long and it makes our job a challenge, but we're ready to face that challenge.

Jose Cardenas:
As I understand it, Phoenix is a major distribution point.

Elizabeth Kempshall:
That's correct.

Jose Cardenas:
Is that where most of your resources are concentrated?

Elizabeth Kempshall:
A number of agents here in Phoenix, agents deployed along the southwest border, they work hand in hand with our agents up here in Phoenix as a force multiplier. They are -- the agents along the border and agents in Phoenix are strategically working together to focus on the most significant trafficking organizations that are bringing drugs through our states.

Jose Cardenas:
You're also working with our Mexican counter-parts, describe that for us.

Elizabeth Kempshall:
The drug enforcement administration has had a presence in Mexico for a number of years. We have been building this relationship for a long time. Since the Calderon administration came into power or into office, we have experienced a resurgence and a positive relationship with our Mexican counterparts, when President Calderon extradited some of the traffickers back in January, we were assured of his commitment. We're enjoying a much better relationship and partnership with our Mexican counterparts in this fight on the War on Drugs.

Jose Cardenas:
How does that manifest itself? What are the benefits of the greater cooperation?

Elizabeth Kempshall:
Share intelligence back and forth, cooperatively work investigations together, because the heart and soul of the organizations that are operating here in Arizona, they're command, control is down in Mexico. We must work together to take out the entire organization. It does no good to take out one person here and one person there. You need to take out the entire organization to really make the most significant impact, and we're going with our Mexican counterparts, we can do that.

Jose Cardenas:
We have heard how much more violent the Mexican trafficking gangs are getting. How has that impacted your work in Texas and now here?

Elizabeth Kempshall:
Drug trafficking has always been a very violent and dangerous crime to investigate and to be a part of. Recently, the Mexican cartels have been in war with one another which has caused an increase in violence much the stakes are high for traffickers. They lose a load of cocaine, that's millions of dollars, that will cost somebody their life. They are ready to fight it out so they don't lose that amount of drugs. The amount of money involved is astronomical, and people are willing to risk their lives for that kind of money. It makes our job inherently dangerous to enforce those laws in the midst of that kind of violence.

Jose Cardenas:
What in your priorities as head of the Phoenix office in Arizona?

Elizabeth Kempshall:
We are focusing on the major traffickers, methamphetamine and prescription drug abuse.

Jose Cardenas:
The latter item, something people would think of when we talk about the DEA.

Elizabeth Kempshall:
We have a section in DEA, not only fighting illegal narcotics, but we work to prevent the diversion of pharmaceutical drugs, and that is a growing problem. If you look at the abuse statistics for high school and 8th, 10th, 12th graders, Vicodin is one of the most abused drugs. More than marijuana, more than cocaine, etc. The prescription drugs are becoming a significant problem among our youth, and we need to attack those illegal internet pharmacies that are freely dispensing these drugs to our children, and we also need to go and attack the pill mills, illegal pill mills that are without just cause prescribing massive amounts of pharmaceuticals to people that don't need them.

Jose Cardenas:
We're not talking about people that cross the border in Nevada to get their prescriptions filled.

Elizabeth Kempshall:
No, that is a whole different area. My concern is the individuals that are illegally prescribing drugs here in the United States to someone that they have not truly established a patient client relationship, that doesn't need the pain killers they're going for and the internet pharmacies, illegal internet pharmacies freely dispensing drugs to our citizens without a valid patient/client relationship, and the individual buying the drugs from the internet, they don't even know where these drugs are coming from. They go on line and order Hydrocodone -- it is -- you don't know what is in the pill that you're taking. And that is a major concern of mine.

Jose Cardenas:
We have talked about the level of cooperation you have had with the Mexican counterparts. What about local law enforcement?

Elizabeth Kempshall:
That is one of the nicest things I realized when I arrived in Arizona is that the relationship with the federal, state, local law enforcement is the best I've ever seen. Everybody understands they have a role and they're willing to help one another be a force multiplier. We're all operating with limited resources, and so we need to work together. These drug trafficking organizations are combining their resources and we need to do the same to attack them appropriately. From the day I got here, I have been working hand-in-hand with the Phoenix Police Department, Mesa Police Department, Chandler PD, FBI, it has been a wonderful relationship.

Jose Cardenas:
Welcome to Arizona. Thank you for joining us on "Horizonte."

Elizabeth Kempshall:
Thank you very much.

Jose Cardenas:
The issues surrounding the English language learners program are complex. Tonight we hear from a mother who continues to battle the state of Arizona over the matter. 15 years ago, Miriam Flores from Nogales sued the state for failing to help her daughter learn. Marcos Najera spoke with Mrs. Flores in Nogales.

Marcos Najera:
Nogales has always been a town of two languages, with its people living in a region separating two countries. Many have roots in both. Just like Miriam Flores. And when it comes to education, she says it gets frustrating helping lawmakers think clearly about the role language plays in learning.

Marcos Najera:
In 1992, she sued the state for failing to properly educate her daughter who was a student in the school district at the time. 15 years later, the Flores versus Arizona case struggles to find resolution in the courts. Her daughter is in college now.

Marcos Najera:
When Miriam's daughter first entered school, she remembers everything being fine. The daughter's first language was Spanish, and the school was offering classes that catered to Spanish speakers.

[Speaking Spanish]

Marcos Najera:
But the easy road didn't last long.

[Speaking Spanish]

Marcos Najera:
Mrs. Flores couldn't figure out what was happening. Her daughter insisted she wasn't misbehaving.

[Speaking Spanish]

Marcos Najera:
Even the textbooks confused her daughter, so she would ask her mom for help.

[Speaking Spanish]

Marcos Najera:
Even with the confusion of the books, the language and the curriculum, the family refused to give up. Despite the daily classroom struggles that Miriam's daughter faced.

[Speaking Spanish]

Marcos Najera:
Nonetheless, Mrs. Flores is proud of her daughter who is an advanced nursing student at the U of A. The controversy continues over the learning of one language, English, her daughter now speaks four.

Jose Cardenas:
Tim Hogan is the Executive Director for the Center for Law in the Public Interest and the attorney for the plaintiffs who are challenging the adequacy of state funding for English language learning programs. The defendants in the case are the state of Arizona and the state board of education. The superintendent of public instruction Tom Horne is also a defendant. The speaker of the house and president of the senate are also in the case as interveners. "Horizon" spoke to both Tim Hogan and Tom Horne about the lawsuit.

Tim Hogan:
In the Flores case, we claimed that the state had not taken appropriate action to help these kids overcome their language barriers because they had failed to adequately fund programs for English language learners, and that, in fact, the funding for those programs was not only inadequate, but also arbitrary. It wasn't based on anything. It was just a number that the legislature had picked out and decided that they were willing to fund. And we alleged that was a violation of the equal educational opportunities act.

Tom Horne:
The important findings were made in the year 2000, chose the Nogales School District, he thought that was the worst performing district, and they chose that as the plaintiff class, and there were a number of findings that were made because we are not doing well, not proper training, so on -

Tim Hogan:
The base level funding which represents the average amount needed to educate students generally, at that time were somewhere around maybe $2,500 per student. The court said the extra $150 that the legislature was funding was inadequate, had caused deficiencies in the Nogales Unified School District, which is representative of the state in this lawsuit. This lawsuit applies statewide, despite the state's claims to the contrary. That 150 was inadequate because it had resulted in crowded classrooms, not enough teachers, not enough materials, kind of on and on, and also just plain arbitrary, that the legislature had taken the $450 that they knew some school districts were spending and arbitrarily decided they would only fund a third of that. The court said you have to fund these programs based on the cost of providing the programs in order for it to be a rational, non-arbitrary funding system.

Tom Horne:
Between 2000, and 2005, Nogales had an excellent superintendent. He now works for the department and heads up our technical assistance programs for schools, and between 2000 and 2005 he turned around that district so that the test scores of the kids went way up. They emphasized academics, eliminated social promotion, if the kids weren't learning they would not go to the next grade level, which meant intervention in the summertime and the kids started to do much better.

Tim Hogan:
The defendants in the case, the legislature, superintendent of public instruction and the state of Arizona, three different entities have all claimed at various times that the lawsuit is limited to Nogales somehow. If they take care of things in Nogales that the lawsuit should go away. The judge has rejected that idea. This is a declaratory judgment action challenging the funding system statewide. You don't have to join all 228 school districts in order for that to be -- to raise that issue. The principle, the formula, state's finance system doesn't provide adequate or rational funding applies to every school district.

Tom Horne:
Funding may have been inadequate, but in addition to that, the leadership was terrible. A witness on our side of the case, when they got there, they were disorganized, weren't doing things right, didn't have the emphasis on academics. Not only a matter of funding, that it is used correctly, good leadership, focus on academics, accountability, you can put funding and get no results. We have to be sure that the funds are used properly so we get good results.

Tim Hogan:
Each time the legislature is confronted with data about what it costs, they basically want to ignore it and talk about other things. This has never been about us litigating this case trying to tell the legislature how kids should be educated. That is a policy decision up to the legislature. But the law requires that they fund it. You can't hope that these programs are going to be effective without the funding to put them in place. So, that's really been -- really been the issue over the last seven years.

Tom Horne:
The funding now is over double what it was for English language learners. We spend about $6,000 per pupil in Arizona. -- and in 2000, it was 100 some dollars, it has more than doubled, and a lot of the other kinds of funding have increased, and the no child left behind, and the situation is different now than it was then. Funding is a means to an end. I think the example of Cal Cooper, sometimes it's not a different of funding a lot of districts get more money than Nogales, it is not a desegregation district -- Nogales doesn't get that money, yet they're performing better than the other districts because they have good leadership.

Tim Hogan:
No question there have been improvements in Nogales, and the way Nogales has done that is by taking money away from other programs, taking federal funds, taking money generated off the local tax base, because the problem for school districts is this is a federal law. The school district has an obligation as well. They have to find the money to take care of the problem and try and provide adequate programs.

Tom Horne:
Some of it is federal funds, some different kinds of state funds, some local funds. Local taxation for education also. One of the legal differences we have with Hogan is he things federal law requires -- I think that all the federal government requires is you take reasonable steps to have the kids learn English and be able to compete academically. And that funding is being provided. The federal statute says take reasonable actions.

Tim Hogan:
There are urban school districts in Phoenix and Tucson that has a significant challenge, as Nogales does, and perhaps more so. We have school districts in the Phoenix area where students come to school speaking -- the student population speaking 40 different languages. You know, from Eastern Europe to Asia to Africa, I mean, this isn't limited to Spanish speaking students. So, it is a statewide issue. It is not limited to Nogales certainly. All school districts face challenges, some to varying degrees.

Tom Horne:
To those students who are here and will be here, it is important that we teach them English quickly and -- it is federal negligence at the border that result in us having such large number of kids. I don't think the whole burden should be put on the Arizona taxpayer. One of the ironies, part of our appeal, even the money that the federal government gives us under title three and no child left behind, if he finds a different number than what we're spending as the appropriate number, we can't count the federal money. The great majority of the students are here because of the negligence of the federal government in not guarding our border.

Tim Hogan:
People want to introduce immigration issues into this. I don't see any real place for that at least in terms of the kids we're talking about who are in Arizona right now and who are in Arizona's public schools. You know, when people ask me about, well, immigration policy and all of these kinds -- that's not the issue. The issue is these kids are here, and I always tell people, you let me know when they're gone, and we will do something different, for the time being let's agree that while they're here, and, by the way, most all of these kids are United States citizens. This is not just -- people tend to confuse some of these issues, but, you know, I tell people while they're here, let's agree we will treat them the same way we treat all of the kids and have the same goals for these kids that we have for all of our kids in public school which is to get a quality education and be all you can be.

Tom Horne:
The judge found in his order that it is apparent that the Arizona department of education has taken its role seriously, and is endeavoring to establish appropriate standards and goals for all students in Arizona. The trial judge recognized that we're working hard in the Department of Education, that the schools improve the education -- become proficient in the English quickly and excel with the rest of the students.

Jose Cardenas:
On December 4th, the 9th circuit will hear oral argument on the appeal of Judge Collin's March 22nd order finding that the state is still not fully funding ELL instructional costs.

Jose Cardenas:
I'm Jose Cardenas, have a good night.

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Tim Hogan:Executive Director, Center for Law in the Public Interest;

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