Federal

Ariz. ELL Programs Found to Violate Civil-Rights Law

By Mary Ann Zehr — September 13, 2010 6 min read
High school students in Nogales, Ariz. listen during an English-language-development class last year. In 1992, parents from the district filed a federal lawsuit contending programs for English-learners were deficient. A hearing in that long-running case opened this month in the U.S. District Court in Tuscon.
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On the first day of a hearing this month in a closely watched federal court case over Arizona’s programs for English-language learners, a single witness for the state department of education spent the day on the stand testifying on the success of the state’s approach to teaching students who need to learn English.

Meanwhile, news surfaced that same day that federal civil rights officials took a slightly dimmer view of aspects of the state’s ELL programs.

In letters sent to the state school superintendent last month, the U.S. Department of Education’s office for civil rights, or OCR, said it had determined that two of the practices the state uses to identify which students require services, or for how long, violate federal law. They are the home-language survey that schools give to parents in order to initially identify students to be tested for ELL services and the process the state uses to reclassify ELLs as fluent in English even if they don’t pass all sections of the state’s English-language-proficiency test. The letters said that the U.S. Department of Justice concurred with OCR’s determinations.

Both the outcome of the court case and the OCR rulings are likely to have ramifications far beyond Arizona. Some states or school districts likely have ELL identification and testing policies similar to the ones that federal officials singled out in the OCR letters. The court case is attracting national attention because it examines a question that many states and districts are trying to answer: What is the most effective way to educate English-language learners?

Key Points

For two school years, Arizona has required that English-learners be separated from other students for four hours to learn English skills each day. Whether the approach is beneficial to such students has become a central issue in the court case, which was filed by parents from the state’s Nogales Unified School District in 1992. The case, known nationally as Horne v. Flores, went all the way to the U.S. Supreme Court in April 2009. The federal justices remanded it to the U.S. District Court in Tucson in June of last year to examine “changed circumstances” since the case was filed. Here in Arizona, where the case is referred to as Miriam Flores v. State of Arizona, an evidentiary hearing began Sept. 1 and is expected to run for at least two weeks.

John A. Stollar Jr., who was the deputy associate superintendent for Arizona’s office of English-language-acquisition services from the end of 2006 to this past May, was the only witness called to the stand during the Sept. 1 hearing. In his answers to questions put forth by Eric J. Bistrow, the lawyer for Arizona Superintendent of Public Instruction Tom Horne, Mr. Stollar said that the state’s four-hour program has been backed with extensive teacher training, has been carefully monitored by the state, and has vastly improved the quality of schooling for ELLs over the past two school years.

“Kids are receiving more instruction, better instruction, because [the program] is directed at English-language proficiency and teaching academic content,” Mr. Stollar said.

In his questioning, Mr. Bistrow addressed two major criticisms of Arizona’s ELL program. One criticism is that it is generally inflexible and doesn’t support teachers in teaching academic content to ELLs at the same time students are learning particular English skills. The second, he acknowledged, is that some educators have expressed concerns that ELLs won’t be able to acquire the credits they need to graduate from high school in four years.

In response to that line of questioning, Mr. Stollar said that for the four-hour program, “if the driver of the instruction is the English-language-proficiency standards, the vehicle is the academic content.” He added: “You don’t teach the English language in isolation.”

Mr. Bistrow argued to the court that ELLs are doing well in the new program because the average rate at which students were reclassified as being fluent in English jumped from 12 percent during the 2006-07 school year to 29 percent in the 2008-09 school year.

But in an interview outside the courtroom, Tim Hogan, the lawyer for the Flores side of the case, contended that the Arizona education department doesn’t have a convincing case that the four-hour program complies with the federal Equal Educational Opportunities Act of 1974. That civil rights law says that school districts must “take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.”

Access to Academics

If the four-hour program focused on the teaching of academic content, “we wouldn’t have to have math and science taught outside of the models,” Mr. Hogan contended. “A teacher in the four-hour model cannot plan a lesson with an instructional objective related to science and math,” he said.

Mr. Hogan, who would get his chance to question Mr. Stollar the next hearing day, also said that the state’s reclassification rate of 29 percent undermines the rationale for the four-hour program.

“For a law that was going to get you in and out [of intensive English classes] in a year, 29 percent is not that good,” he said. According to the Equal Educational Opportunities Act, he said, “you shouldn’t deprive a kid of access to academic content without a really good reason.”

Mr. Hogan contended that Mr. Bistrow and Mr. Stollar made the argument that the four-hour program is flexible because they know that the inflexibility of the program is a problem. “We have the most rigid ELL program in the country,” Mr. Hogan said.

Mr. Hogan also claimed that “the four-hour model segregates and deprives ELLs of access to the curriculum.”

Only 59 percent of Arizona’s schools have enough English-language learners that they are required to implement the four-hour program, according to a brief released last month by the Education Department’s Institute of Education Sciences. The state law exempts schools with 19 or fewer ELLs.

OCR Weighs In

Mr. Bistrow didn’t mention during the hearing the determination decisions that came in August from the federal Education Department’s civil rights office. They stemmed from the office’s investigations into whether the state’s use of a home-language survey and English-language-proficiency test are in compliance with federal law.

The OCR decided that the state’s simplification from three questions to one question on its home-language survey is a violation of federal law, which it communicated in an Aug. 3 letter to Mr. Horne.

Mr. Bistrow said in an interview that Arizona districts, however, haven’t been able to show a “statistically significant” number of students didn’t get ELL services because of the changes in the home-language survey.

An Aug. 27 letter to Mr. Horne said the OCR had found that the state education department’s use of its English-language-proficiency test doesn’t comply with Title VI of the Civil Rights Act of 1964 because “it fails to ensure a valid measure of whether ELL students are (a) proficient in each language domain before they are exited from ELL services and (b) able to participate meaningfully in Arizona’s … educational programs.” The letter said Arizona’s use of its English-language-proficiency test also doesn’t comply with the Equal Educational Opportunities Act.

Mr. Bistrow said that the state department of education got involved in the court case to appeal fines that U.S. District Judge Raner C. Collins had imposed on the legislature for not complying with a ruling to fix programs for ELLs. Later, Mr. Bistrow said, the department sought relief from that ruling to improve schooling for ELLs because it found that the Nogales school district, where the court case originated, “was operating effective ELL programs.”

Mr. Bistrow said the Flores case should be limited to an examination of the schooling of ELLs only in the Nogales school district.

Meanwhile, Mr. Hogan contended that “the whole regime here is designed to not identify [ELL] students, and if we do, to exit them before they are prepared, and save the state money.”

A version of this article appeared in the September 15, 2010 edition of Education Week as U.S. Finds Programs for ELLs in Arizona Violate Civil Rights

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