Published Online: April 20, 2009
Published in Print: April 29, 2009, as Supreme Court Weighs ELL Funding
Updated: April 4, 2012

U.S. Supreme Court Considers Funding For English-Learners

Justices ask how much progress is adequate

In the first case about services for English-language learners reviewed by the U.S. Supreme Court since 1973, the justices pondered last week what adequate academic progress is for English-language learners, and whether ELLs in the school district where the case originated had met that mark.

Framing the issue, Justice Antonin Scalia asked: “Do you really think that you haven’t complied with adequate funding of ELL programs until you raise all of the ELL students up to the level of native English-speakers?”

The justices seemed deeply divided during oral argumentsRequires Adobe Acrobat Reader on whether a federal court had acted appropriately in ordering the Arizona legislature to provide enough funds for the state’s ELL programs.

Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter seemed to lean toward the side of parents from the Nogales Unified School District, who filed the original class action in a U.S. District Court in Tucson, Ariz. And three others—Justice Scalia, Justice Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr.—appeared to be more sympathetic toward arguments made on behalf of state lawmakers who believe they have satisfied a court order to serve ELLs well.

Justices Scalia and Roberts, for example, questioned whether it was appropriate that the case, which had initially involved one school district, had been expanded to apply to all Arizona districts.

In his questioning, Justice Anthony M. Kennedy seemed to strike a middle ground, while Justices John Paul Stevens and Clarence Thomas remained silent.

In Horne v. Flores, the state argues that compliance with the federal No Child Left Behind Act is sufficient in providing “appropriate action” to help students overcome language barriers, as required by the Equal Educational Opportunities Act of 1974.

The U.S. District Court had ruled that Arizona violated the EEOA because its funding system for ELLs was “arbitrary and capricious” and didn’t have a rational relationship to the cost of programs. Also at issue is whether the U.S. Court of Appeals for the 9th Circuit, in San Francisco, was correct in upholding the lower court’s decision that a law passed by the Arizona legislature in 2006 did not satisfy that lower court’s decision requiring the state to provide adequate funding for English-language learners.

‘Changed Circumstances’

Much of the debate on April 20 focused on whether English-learners in Nogales had made acceptable progress, and whether it was appropriate for a federal district court to require a funding solution for an educational problem.

No one denied that ELLs were not being served well more than 16 years ago, in 1992, when the case was first filed. The case became known as Flores v. State of Arizona in 1996, after Miriam Flores and her daughter of the same name joined the class action. ("Roots of Federal ELL Case Run Deep," April 8, 2009.)

“There had been a failure” by the Nogales district, which has 6,000 students and is located near the U.S.-Mexican border, to educate English-language learners well, Kenneth W. Starr, the lawyer for the state, acknowledged in his opening statement.

But the U.S. Court of Appeals was wrong, he said, not to recognize that “the circumstances had dramatically changed” from 2000, the time that the district court first ruled that the state didn’t provide adequate funding for ELLs, to 2008, when the appeals court upheld that ruling. By then, Mr. Starr, argued, “Nogales was doing great.”

But Sri Srinivasan, the lawyer for the parents, said, “What the district court found is that the improvements today, though significant, failed to reach the [Nogales] high school, and they were fleeting.”

Mr. Starr, a former federal judge and U.S. solicitor general who gained fame as the independent counsel during the Whitewater investigation of President Bill Clinton, also argued throughout the hour of debate that passage of the No Child Left Behind Act “is one of the changed circumstances” that the appeals court should have considered, because of how the 7-year-old law altered the state accountability landscape for ELLs.

Justice Breyer questioned if, in fact, Nogales was “doing great” in educating ELLs. He cited statistics from court documents that show ELL performance in the Nogales district lagging dramatically behind the state average for all students on standardized tests.

“The exam to which you are referring is given in English,” replied Mr. Starr, implying that ELLs would be expected to lag behind.

“Isn’t the point of this to teach the children to learn English?” asked Justice Breyer.

Later in the discussion, after pointing out for a second time the achievement gap between ELLs and all students in the state, Justice Breyer said, “They have made progress, but they are not quite home yet.”

The central question, Mr. Starr replied, is “What is home?”

All Arizona is required to do under the Equal Educational Opportunities Act, he argued, is make a “good-faith effort at compliance,” which he said it has done.

But Justice Souter said he understood the case to be centered on two deficiencies in the 2006 state law that the legislature had hoped would satisfy the court mandate to provide adequate funding. Those deficiencies, he said, are that the law limits funding for ELLs to two years, when, in fact, Justice Souter said, “the evidence showed that you couldn’t get a kid up to par with the two years of education,” and that federal money can be used to supplant state funding for ELLs.

State Expansion Questioned

Justice Scalia expressed his discontent that then-Attorney General Janet Napolitano of Arizona had ever agreed that the court case, which originated in Nogales, should be expanded to apply to all districts in the state.

Chief Justice Roberts also questioned the state attorney general’s move to expand the case statewide. He said it was a way for the official to go to the legislature for funding and say, “You don’t have a choice.”

“The attorney general was essentially siding with the plaintiffs,” Mr. Starr contended.

Chief Justice Roberts wondered aloud if it would have been better for the federal district court to have told Arizona to fix the problem of educating ELLs rather than mandating a funding solution.

“Isn’t the preferable approach for the district court to say, ‘You have a violation, you have to fix it, and I’m going to check to see if you fixed it at particular intervals?’”

And Justice Alito questioned an argument made by the Flores side that the proportion of state funding for ELLs, compared with funding from other sources, was insufficient. “What difference does it make where the money comes from, putting aside federal money that can’t be supplanted?” he asked.

When Mr. Srinivasan argued before the court, Justice Scalia asked him if the requirements of the Equal Educational Opportunities Act were affected by the later enactment of the NCLB law.

Mr. Srinivasan said an individual doesn’t have the authority under the nclb law to make his or her own case before the court. He also said the law basically requires only a “testing program” for ELLs, not an education plan for which costs could be calculated.

Concluding, Mr. Srinivasan said “it bears noting that in Nogales, the progress called for by No Child Left Behind hasn’t been made in the last two years.”

Thirty-five years ago, the court ruled that English-language learners had the right to a “meaningful opportunity” to participate in public education in Lau v. Nichols.

The justices are expected to rule on Horne v. Flores (Case No. 08-289) by June.

Vol. 28, Issue 30, Page 6

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