Published Online: August 12, 2010

Arizona Subpoena Seeks Researchers' ELL Data

A subpoena seeking research data related to the education of English-language learners in Arizona is drawing fire from civil rights advocates and researchers.

Lawyers for state Superintendent of Public Instruction Tom Horne want the data for use in a long-running federal court case over Arizona’s approach to educating its ELL students. But researchers from the University of Arizona, Tucson, and from Arizona State University, Tempe, had promised that the information—which includes the names of study participants—wouldn’t be made public.

The raw data requested are associated with three studies conducted by those researchers for the Civil Rights Project/Proyecto Derechos Civiles at the University of California, Los Angeles. The studies take a critical view of Arizona’s requirement that all English-learners be separated into classrooms for four hours each day to learn discrete English skills.

Whether the four-hour program for Arizona’s 123,000 ELLs is working is a central issue in the federal case, Horne v. Flores. The U.S. Supreme Court heard the case in April 2009 and remanded it in June of last year to the U.S. District Court in Tucson. An evidentiary hearing in the case is scheduled to start Sept. 1, and Mr. Horne’s lawyers requested the data for that hearing.

Patricia Gándara and Gary Orfield, the co-directors of the Civil Rights Project, characterized the request as an “egregious misuse of power and of intimidation” in a letter distributed to colleagues over the Internet. They’re concerned the subpoena will discourage educators from participating in research studies in the future.

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Arizona’s schools are mandated to provide ELLs with a four-hour block of English until they pass the state’s English-language-proficiency test. The findings of the three studies suggest the program will have negative consequences for ELLs. One study, for example, found that 85 percent of 880 teachers surveyed throughout the state were very concerned about the “segregation” of students in the classes, and that most said a majority of students were not meeting grade-level standards through them.

For the study based on that teacher survey, Mr. Horne’s lawyers asked the University of Arizona to turn over “[a]ny and all documents, records, memoranda, recordings showing or reflecting the name, school, and grade of each teacher who participated in the surveys described in the report.” They made similar requests for a second study conducted by researchers at the University of Arizona and an additional study carried out by researchers at Arizona State University.

The University of Arizona complied in part with the request by turning over raw data from the studies earlier this week, but Arizona State has not.

The University of Arizona “responded to the subpoena by providing some documents requested but refusing to provide any personally identifiable information related to any of the individuals who participated in the research study interviews and/or surveys,” a spokeswoman for the university said in an e-mail message to Education Week this week.

Eric J. Bistrow, one of the lawyers representing Mr. Horne, said in an interview that he made the requests for the names of study participants only for research conducted by people who have been named as expert witnesses in Horne v. Flores by the lawyers for the Flores side of the case. Those two experts are Cecilia Rios-Aguilar, an assistant professor in the college of education at the University of Arizona, and M. Beatriz Arias, an associate professor in English at Arizona State, he said.

“How do I know the summaries [by the expert witnesses] are accurate if I don’t see the raw data?” Mr. Bistrow said. “They are claiming that teachers have a certain point of view about Arizona’s policies. How do I know that they didn’t cherry-pick a school where the administrator expressed disdain for the [four-hour] model?”

Mr. Bistrow said the University of Arizona turned over 1,500 documents on Aug. 9 in response to his subpoena, but he hasn’t had a chance yet to determine what information the documents contain. But Arizona State hasn’t turned over anything, he said.

Meanwhile, Timothy M. Hogan, the director of the Phoenix-based Arizona Center for Law in the Public Interest and a lawyer for the Flores side of the case, filed a motionRequires Adobe Acrobat Reader Aug. 10 asking the judge for the case to prohibit the disclosure of the identity of teachers, administrators, schools, or school districts that participated in the academic research studies conducted by expert witnesses. Both the University of Arizona and Arizona State University are cooperating with that action.

Sandra Eyster, the chairwoman of the Institutional Review Board for the Washington-based American Institutes for Research, said it’s not an uncommon “tactic” for attorneys to subpoena research data. “If there is somebody who has done some research that is disfavorable to your position in court, you may want to access the data to pick it apart or prevent the person from testifying,” she said.

Ms. Arias, the researcher from Arizona State who is scheduled to be an expert witness, said it’s part of her professional responsibility not to reveal the names of participants in her study, which looked at the implementation of the four-hour model in 18 classrooms in five Arizona school districts. Her study concludes that Arizona’s four-hour program provides instruction that is inferior to that received by other students. It raises questions about whether the four-hour program will hinder English-learners in high schools from acquiring the credits they need to graduate on time.

“We promised their names wouldn’t be revealed in any way. We didn’t want any retaliatory action to take place against people who participated in the studies,” Ms. Arias said about the participants in her study.

Mr. Bistrow said that if the researchers want to protect confidentiality, “they don’t have to testify.”

In their letter expressing concern about the matter, Ms. Gándara and Mr. Orfield of the Civil Rights Project said that such a stance by Mr. Horne’s lawyers is “a blatant attempt to get this research out of the trial by making the researchers choose between going to court and putting the districts and schools at risk.”

In a phone interview, Ms. Gándara added: “The situation is very tense in Arizona right now. Some districts have been under particular scrutiny. … We think many would not have participated [in studies] if they had known their identity would be divulged.”

Arizona has been the center of intense national debate over a recently adopted state law targeting illegal immigration.

Margaret G. Dugan, the deputy state superintendent of public instruction, said she looked over the names of school districts that were released by the University of Arizona to Mr. Horne’s lawyers. She said the list included a number of districts whose administrators have not been enthusiastic about carrying out the four-hour model for ELLs.

She concluded that the studies by the Arizona researchers released by the Civil Rights Project are “slanted.” Ms. Dugan added, “At least I would like for them to have surveyed districts and teachers who are positive about the model.”

Vol. 30, Issue 01

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