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English-Language Learner Case Framed as Civil Rights Enforcement Issue Before Supreme Court

At a time when children with limited English skills are among the fastest-growing groups in public schools, the U.S. Supreme Court today will hear a case that could greatly impact the way states educate English-language learners.


On one side: Arizona’s top education official and legislative leaders. They want federal courts to release them from a 2000 consent decree that said their English-language learner (ELL) programs violated ELL students’ civil right to an equal education — because they were so underfunded they couldn’t effectively teach the students English or other subjects. They say Arizona has greatly improved its ELL programs, particularly in the Nogales district along the U.S.-Mexico border where the lawsuit got its start.


On the other: Miriam Flores, a Nogales mother who joined the suit in 1996 after her daughter’s grades dropped in the third grade, when bilingual classes shifted to English-only. Her daughter, also Miriam, is 22 now far beyond the reach of the decision to be made by the Supreme Court justices.


Still, the elder Flores said in an interview in Spanish, “I’m nervous because it’s something so much bigger now.”


If the stack of briefs filed in the Supreme Court is an indicator, the case indeed is far more significant today.


Horne v. Flores pits Arizona politicians and school officials against each other. Nationwide, education researchers are in opposite camps on whether increased funding matters. Civil rights groups are with Flores. Limited-government proponents side with Horne. Advocates of bilingual education, where students are schooled at least some of the time in their primary language, are backing Flores. Supporters of English-immersion education where students learning English study all subjects in English alone support Horne.


Arizona voters adopted an English immersion policy in 2000, months after the state entered into the federal consent decree. The approach largely eliminated the ability to use bilingual education in public schools.


But the major questions in the case do not focus on the educational method. More at issue:


  • Whether Arizona needs to specifically earmark for ELLs all of the funds necessary to operate its ELL programs, as the Ninth Circuit Court of Appeal has required.



Attorneys for Thomas Horne, Arizona’s superintendent of public instruction, say its ELL education system has improved mightily. They attribute that to more funding, better teacher training, the English-immersion system, and standards and testing established under NCLB. As a result, they say, there is no civil rights violation.


“If we win outright, what it’s going to mean is federal oversight will cease and Arizona will go about the business of educating its kids and no longer be under this gun of providing earmarked funding, when our view is it’s not necessary anymore,” says Eric Bistrow, the Phoenix-based lawyer representing Horne.


Horne is backed by the Arizona House Speaker and Senate President, whose chief lawyer is Kenneth Starr, the Pepperdine University law school dean and former House Independent Counsel who tangled with President Bill Clinton in the Monica Lewinsky scandal. Their brief says the lower courts overstepped their power in telling Arizona it must specifically set aside funding for all its ELL program operational needs.


“The lower courts’ approach will create perverse incentives to keep students languishing in special-language programs” since it’s based on the number of students in the programs, rather than those who become English-proficient.


And, if they lose and must earmark ELL funds? Bistrow says opponents suggest Arizona would need to spend $300 million more on ELLs: “This fight is more than an academic exercise. It’s about real money.”


Tim Hogan, executive director of the Arizona Center for Law in the Public Interest and a co-counsel for Flores, estimates the amount at closer to $200 million.


But funding is only half the issue. Hogan believes there would be significant national fallout if the Supreme Court decides that a state’s compliance with its own No Child Left Behind plan means it also complies with the Equal Educational Opportunities Act.


“That’s a huge issue,” says Hogan, noting that under the EEOA, individual students like Miriam Flores have a right to sue, while No Child Left Behind provides no such right. “That would have a serious impact on students’ ability to vindicate their civil rights under the EEOA.”


The Justice Department charged with enforcing the EEOA has sided with Flores on that issue. So has the National School Boards Association in its brief that said the federal courts’ historical enforcement of the civil rights law is even more important today. “With ELL populations growing in more states and school districts nationwide, this would be a particularly inopportune time for the court to abdicate its crucial responsibility in this regard.”


There were about 5 million limited-English-proficient students in public schools in the 2005-2006 school year, according to the National Clearinghouse for English Language Acquisition and Language Instruction Educational Programs.


Tom Hutton, senior staff attorney for the National School Boards Association, says allowing NCLB to serve as the default standard for EEOA “could be an enormous can of worms” that could impact civil rights protections for other groups addressed in both laws including the disabled.


“How would this play out in the special education context? I really have a hard time believing the court would go there,” Hutton says.


But Arizona’s legislative leaders said in a brief the EEOA’s ban “against discrimination, deliberate segregation, and forced busing remain largely (if not entirely) unaffected by NCLB.”


Back in Nogales, Miriam Flores wonders what it will mean for her youngest daughter. Her oldest daughter, Miriam, is now studying at the University of Arizona and applying to nursing schools across the state.


Her youngest, Isabella, is 5. She’ll start kindergarten in the fall.


“I’m wondering what’s going to happen with Isabella. She doesn’t speak hardly any English,” said the elder Miriam Flores, who fears the impact of a recent Arizona law that now requires ELLs to spend four hours a day learning English, limiting their time in other subjects.


“Isabella loves music. She says, ‘I want to be in music and band.’ If she can’t get out of the ELL programs, then she won’t be able to develop that talent.’’


Miriam Flores, the daughter, says some people back home in Nogales tell her nothing much has changed for ELLs. But some friends, who are schoolteachers, say they’re receiving special training now to help teach second-language learners.


“I’m definitely sure it improved since I was in elementary school,” she says. “I’m really hoping it does eventually become a lot better.”

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