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Published in Print: August 25, 2010, as Researchers' ELL Data Subpoenaed in Arizona Court Case

Researchers' ELL Data Subpoenaed in Arizona Court Case

The Request Came From Lawyers for the State Education Department

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A federal judge ruled last week that two Arizona universities must partially comply with a subpoena asking them to turn over data associated with research studies on Arizona’s approach to educating English-language learners.

The request, which has drawn fire from civil rights advocates and researchers, came in the case Horne v. Flores, which is about the education of ELLs in the state.

Lawyers for state Superintendent of Public Instruction Tom Horne say they need the data to evaluate the accuracy of the testimony of expert witnesses in the case. But researchers from the University of Arizona, in Tucson, and from Arizona State University, in Tempe, had promised that the information—which includes the names of study participants—wouldn’t be made public.

Judge Raner C. Collins, of the U.S. District Court in Tucson, issued an order Aug. 19 saying the universities must provide the names of schools and school districts involved in the studies, but not the names of individuals who participated.

How do I know the summaries [by the expert witnesses] are accurate if I don't see the raw data?
Eric J. Bistrow
Lawyer representing the Arizona Education Department

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 case. 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.

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.

Privacy Issues

For the study based on that teacher survey, Mr. Horne’s lawyers asked the University of Arizona to turn over “any 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 month, 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 on Aug. 11.

Eric J. Bistrow, one of the lawyers representing Mr. Horne, said in an interview that he requested the names of study participants only for research conducted by people named as expert witnesses in Horne v. Flores by the lawyers for the Flores side of the case. They 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 Arizona State hasn’t turned over anything, he said.

In an Aug. 10 motionRequires Adobe Acrobat Reader, 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, asked Judge Collins to prohibit the disclosure of the identity of teachers, administrators, schools, or districts that participated in the research studies conducted by expert witnesses.

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.

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.”

Vol. 30, Issue 01, Page 8

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