Analysis: Complex Arizona ELL Case Holds National Lessons

By Mark Walsh — June 25, 2009 5 min read
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A 5-4 ruling by the U.S. Supreme Court today will require lower courts to re-examine whether Arizona must provide more funding for its English-language learner programs.

The Arizona case is highly complex and quirky, with various state officials pitted against each other. (See my blog posts here and here.) In many respects, it is unlikely any other state will ever reach the position Arizona is in.

But that doesn’t mean the Supreme Court’s decision in Horne v. Flores doesn’t hold important implications for other states and for educators across the nation. It does.

Writing for the majority today, Justice Samuel A. Alito Jr. said the lower courts must reconsider orders requiring more funding for English-language learner programs, both in the Nogales school district where the lawsuit originated and statewide after the remedy was expanded.

A federal district judge in Arizona had ruled in 2000 that the state had violated the “appropriate action” language of the federal Equal Educational Opportunities Act of 1974 by failing to provide adequate funding for its ELL instructional methods. Under the federal civil rights law, each state must “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.”

U.S. District Judge Raner C. Collins of Tucson ruled in 2007 that a 2006 law passed by the state legislature that increased per-pupil ELL funding and made other changes to the state’s program did not go far enough. The state law increased a per-pupil extra amount for English-language learners to $444 from $365, and authorized school districts to seek additional funding for such students. But the law effectively supplanted certain federal funds, and it cut off the majority of state ELL money for any student who remained classified as an English-language learner for more than two years.

That led Judge Collins to conclude that the state’s ELL funding system remained irrational and in violation of the EEOA. In upholding the judge’s ruling last year, the U.S. Court of Appeals for the 9th Circuit court said in an opinion that “despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education performance.”

Today, Justice Alito said, “Both of the lower courts focused excessively on the narrow question of the adequacy of the state’s incremental funding for ELL instruction instead of fairly considering the broader question whether, as a result of important changes during the intervening years, the state was fulfilling its obligation under the EEOA by other means.”

His opinion was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas.

Justice Stephen G. Breyer read part of his lengthy dissent from the bench, saying that the majority reached a result that “neither the record nor the law adequately supports. In doing so, it it risks denying schoolchildren the English-learning instruction necessary to overcome language barriers that impede their equal participation.”

His dissent was joined by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg.

Education Week’s Mary Ann Zehr has this story about the decision.

My focus here will be on some of the national implications. For starters, this case is the first before the justices to implicate the No Child Left Behind Act of 2001.

One argument made by state officials who brought the appeal to the Supreme Court--State Superintendent of Instruction Tom Horne and the leaders of the Arizona legislature--was that by the federal Department of Education approving the state’s Title III plan for English-language learners under the NCLB law, the state was also in compliance with the Equal Educational Opportunities Act.

Justice Alito said the high court majority agreed with the 9th Circuit that compliance with NCLB “will not necessarily constitute ‘appropriate action’ under the EEOA.”

But the state’s compliance could be “probative” to the lower courts, Alito said. The 2001 federal law prompted the state to make significant structural changes to its ELL program, and the federal law provided increased funding both for education generally and for ELL programming.

Stepping into another area with national implications, Justice Alito said that NCLB marked a “shift in federal education policy.”

“Reflecting a growing consensus in education research that increased funding alone does not improve student achievement, NCLB expressly refrains from dictating funding levels,” Alito said. “Instead, it focuses on the demonstrated progress of students through accountability reforms.”

Alito referenced various studies, many of which were submitted in a dual of friend-of-the-court briefs on the issue of school finance, that purportedly back his view that there is now a consensus against “increased funding alone.”

This point prompted a retort from Justice Breyer, who cited studies that “cast doubt upon the results” of the finance studies cited by Alito.

“Regardless, the relation of a funding plan to improved performance is not an issue for this court to decide through footnote references to the writings of one side of a complex expert debate,” Justice Breyer wrote.

Finally, both sides also weighed in to some degree about the efficacy of different approaches to teach English to non-native speakers.

Justice Alito cited the Nogales district’s adoption of “structured English immersion” programs as an alternative approach to traditional bilingual education.

“Research on ELL instruction indicates there is docu-mented, academic support for the view that SEI is significantly more effective than bilingual education,” Alito said, and thus the lower courts should give greater consideration to the whether the district’s experience was a “changed circumstance” that warranted relief from court orders.

Justice Breyer responded that the testimony in the district court “about the extent to which Nogales had adopted the new teaching system was unclear and conflicting. And, most importantly,there was evidence that the optimistic improvement in the number of students completing the English-learning program was considerably overstated.”

“Three decades ago, Congress put this statutory provision [the EEOA] in place to ensure that our nation’s school systems will help non-English-speaking schoolchildren overcome the language barriers that might hinder their participation in our country’s schools, workplaces, and the institutions of everyday politics and government,” Justice Breyer said. “I fear that the court’s decision will increase the difficulty of overcoming barriers that threaten to divide us.”

A version of this news article first appeared in The School Law Blog.