English Learner Lawsuit

The legal challenge to Arizona’s program for educating English learners is back in federal district court in Tucson. Meanwhile, the U.S. Department of Education has issued a determination that parts of the program violate federal law. We’ll hear from Tim Hogan, the attorney representing plaintiffs’ in the ELL lawsuit, and Tom Horne, one of the defendants.

Transcript:

Ted Simons: The federal government says that at least two parts of Arizona's program for educating English learners violate federal law. Those findings come as a challenge to the program is being heard in a Tucson federal court. The hearing is part of a lawsuit filed in 1992 that made it all the way to the U.S. supreme court just last year. The high court sent it back to the lower court to consider recent changes to the English learner program. We recently spoke to Tim Hogan, an attorney representing the plaintiffs during a short break in the trial last Friday. Tim, thanks for joining us. We appreciate it.

Tim Hogan: Sure.

Ted Simons: Let's talk about the two federal investigations now. Arizona is violating the Civil Rights Act?

Tim Hogan: Two laws. The U.S. Department of Education office of civil rights is responsible for enforcing the Civil Rights Act which prohibits race and ethnic discrimination. The United States Department of Justice is responsible for enforcing the Equal Educational Opportunities Act. And so both agencies have determined simultaneously that Arizona is violating both laws, both federal laws with regard to the home language survey that's administered to new students enrolling in public school in Arizona, as well as the English language proficiency test and has determined both violate the civil rights act and the equal educational opportunities act and are trying to negotiate a resolution with the State of Arizona to solve those problems.

Ted Simons: Let's talk about the test first. Correct me if I'm wrong, the idea that kids are being reclassified as being proficient in English when they're not, is that the problem here?

Tim Hogan: Correct. In fact, this is a cumulatively scored test. It's all Azela, that's the acronym for the test. We're now in our second version of it in Arizona which was administered for the first time of the last schedule year. The test, since it's cumulatively scored, allows a student to score well enough on oral skills to compensate for deficits in reading and writing English such that students can be exited from English language learner programs, even though they're not proficient in reading English or writing English or both. So, and the federal government is saying that's an invalid test and you can't use it. You can't exit students when they can't read or write English and obviously need further services.

Ted Simons: And those further services are a catching point here, too. Once they exit, there are no further services.

Tim Hogan: Basically, that's correct. It's almost on a school-by-school basis the kind of assistance those students get. The state really doesn't proscribe any assistance whatsoever for those students. Once they're reclassified as English proficient, they're put into a mainstream classroom with all the other English proficient students. You know, I don't know how you can expect it to succeed in that classroom if you can't read or write English.

Ted Simons: So the idea that these kids would be moved on, exited and thus discriminated against and what they're basically saying, and, again, correct me if I'm wrong, you can't discriminate if you want federal money.

Tim Hogan: Correct. The hammer here from the federal government's standpoint is actually twofold. From the standpoint of the U.S. Department of Education, if the state is violating the law and they can't negotiate a resolution of this, the federal government can initiate a process to withhold federal funding to Arizona for education. The U.S. Department of Justice can initiate litigation to enforce the equal educational opportunities act.

Ted Simons: It sounds like a temporary plan might be in order for the first semester for next year and maybe a permanent plan for second semester. What is all that about?

Tim Hogan: It takes a while to develop an appropriate test for English language learners or for any test for that matter. It's a field unto itself. You have cycle matritionists who have to figure out what you're trying to test. How you measure whether or not students have achieved what you're trying to test. Then you have to field test the exam. So there is a transition period whether you're trying to -- you can change -- you can change some things. For example, the reading and writing is easily changed on the existing test, but you really want to develop a new test that more appropriately measures English proficiency.

Ted Simons: Okay. Let's get to the survey now and a couple of questions here that, again, are a problem as far as the feds see it. What's the problem?

Tim Hogan: Well, for the last 20 years, Arizona has been using a series of three questions for new students who are enrolling in school to figure out whether they should be tested -- The tests we were just talking about -- to figure out whether they should be tested to determine whether they're English proficient or not or whether they should receive language support services. Superintendent Horne was given the statutory authority a couple of years ago to change that and decide what questions should be asked. Well, they got together at the Department of Education among themselves and decided that a single question could replace those three questions. Well, just as a logical matter, once you stop asking three questions and you only ask one question, you're going to have a whole lot of people who are excluded from services as a result.

Ted Simons: And again, those people excluded from services equal discrimination as far as the feds see it and that equals can't do that if you want federal money.

Tim Hogan: Right. It's a practice that excludes English language learners from the services that they're entitled to by law because you've got thousands of students statewide who are not getting tested who should have been tested and had they been tested would have been placed in English language support classrooms. So they're not getting those services. Instead, they're just being thrown into a mainstream classroom. Supreme Court of the United States said that was illegal 30 some years ago.

Ted Simons: Okay. Talk to us, the last question here. I know the trial is going down in Tucson. Talk to us what is happening down there, where we are, where we stand.

Tim Hogan: Well, with respect to these two issues, we've indicated in a filing we made in the court today that we're willing to allow the federal government to attempt a resolution of these problems. We had raised these issues in the context of this trial, but it doesn't make any sense to have both proceedings simultaneously and spend all of that time and effort when the federal government may be able to resolve this much more quickly. The other major issue that we're addressing in the trial is this model of English language instruction that the state came up with a few years ago, which basically segregates English language learners for the entire school day almost from their English speaking peers in order to teach them four hours of English every day. That means they're not getting the academic content they should be getting. These kids come to school behind academically anyway. When you deprive them of access to the curriculum like that, they're going to get further behind. This was all done on the promise that they would get reclassified within a year. The whole idea that we're going to provide intensive instruction and so you rapidly acquire English, that's not happening. These kids are staying in this four hours a day for more than a year and that means a whole other year of segregation, being separated from their peers and being denied access to the curriculum.

Ted Simons: Tim, thanks for joining us. We appreciate it.

Tim Hogan: You're welcome.

Ted Simons: Joining me now for another perspective on the state's English learner program is Superintendent of Public Instruction Tom Horne. Good to see you again.

Tom Horne: Great to be with you, Ted. A little more peaceful environment this time.

Ted Simons: A little. We just heard from Tim Hogan. Let's get your take. The feds seem to think to reclassify that they're proficient then the tests are valid?

Tom Horne: The federal government said you need to have one test that needs to be aligned to the Arizona academic standards because we want to make sure we're teaching English in an academic environment. The closest to our standards was the California test. Then it had to be aligned to our standards even more. So we had groups of teachers write questions to more to the standards. If there were any disagreements on the tests, that is between the testing company, Pearson the largest testing company in the world, and the cycle matritionists. They need to get together and if there's something they can work out, that's fine with me. There's certainly been no effort to make the test easier or harder by the Department of Education. We simply turned it over to the testing company as we were instructed to do by the federal government.

Ted Simons: So these kids might be reclassified if they're not proficient in English if the tests show them proficient but if the results aren't necessarily valid, that is possible?

Tom Horne: Anything is possible. But there's no evidence at the moment that shows that there's anything wrong with the test. If the federal government cycle matritionists want to get together and talk about it. I saw a liberal legislator say that Tom Horne made an easier test to save money. That's plain absurd. There was no such effort. And that shows the crazy accusations people are willing to make.

Ted Simons: Again, Tim Hogan mentioned that as well, are they both wrong?

Tom Horne: They're both wrong. I was there when the legislature appropriated $10 million for supplemental services.

Ted Simons: The feds are alleging it, Tim Hogan is alleging it, where's the disconnect?

Tom Horne: The feds are alleging a lot of crazy things since we got into the fight with them with SB 1070. We need state officials prepared to fight the federal government. You take the three questions issue that Tim raised, that's something I really want your viewers to know about. Because as far as I'm concerned, there's one question that determines whether a student should be in an English language learner program and that is what is the primary language of the student. If the primary language is English, then they should not be in the class. If it's not, then you test them to see how well they know English. If there was a question, is there someone else in the household that speaks English? The student might fail the academic test for any reason. They stuck them in a class where they would say table, chair, this is crazy. My only language is English and you're teaching me basic English vocabulary. This is the kind of craziness we're getting from the federal government.

Ted Simons: You mention craziness, but it long started before the SB 1070 fight began.

Tom Horne: There were no findings since I was in office, there were no findings against us, zero, until after the 1070 issue came up. Then all of a sudden a profusion of crazy findings. This thing about if you have a grandmother in the house and your only language is English and you're put in an English language learner class, that's the kind of craziness the federal government is pushing now.

Ted Simons: Are you working with the federal government as far as these two provisions, as far as the civil rights act is concerned? Is there negotiation going on?

Tom Horne: We're involved in negotiations. If we can satisfy legitimate needs, we'll do that. We're not going to put a kid in English language learner class because his grandmother speaks English. I got feedback from Navajo community because their kids were put in an English learner program because their grandmother spoke Navajo.

Ted Simons: Tim Hogan mentioned someone who can't read or can't write and read.

Tom Horne: If they're very good in one section and intermediate in another, if you're great at algebra and not great at geometry, you might pass the test. The federal government had a specific rule when we put our test together that said you could use a cumulative model, so we followed that rule. We followed the federal guidelines. They're criticizing us because we require people we-to-proficient in English and -- we were told by them in 2004 to go to the flat ton district where they heard there were teachers that don't speak English well, because there's a, first of all, law that requires teachers be proficient to teach English to kids. Now they're coming down on us. By coming down on teachers who aren't proficient in English, we're discriminating. Rather than thinking about the interest of the kids to learn English properly, they're worried about if we're discriminating against teachers.

Ted Simons: Isn't the bottom line of all these, you call these nonsense, some of these attacks by the federal government and such, isn't the bottom line kids, getting them to learn, getting them to learn English and get in the mainstream as soon as possible?

Tom Horne: Absolutely. This new program four hours a day of intensive instruction, we've tripled the class rate. Now the federal government is saying you're too concerned about the kids. You're making sure that the teachers who teach them know English. That's too much concern about the kids. You need to teach the teachers.

Ted Simons: Your critics are saying your state is artificially reducing the number of ELL students. How do you respond?

Tom Horne: Absolutely not true. The -- we are not artificially reducing that. We relied on a testing company to develop the test. They were to do it properly. Pearson has better cycle maturationists than the federal government. If they want to work something out, that's fine with me. There was no effort to reduce artificially the number of English language learners. That would be contrary to what I was trying to do, which is teach kids English so they could compete academically.

Ted Simons: Tom, I got to stop you there. Thanks for joining us.

Tom Horne: Good to be here.