Federal

Hearing Opens in Legal Battle Over Arizona ELL Programs

By Mary Ann Zehr — September 02, 2010 6 min read
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On the first day of a hearing 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 entire 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 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 surveys schools and districts give to parents 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.

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?

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 Wednesday and is expected to run for at least two weeks.

The State’s Case

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 expects to have a chance to question Mr. Stollar during the second day of the hearing, 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 said in an interview earlier in the day that he would argue in court that “the four-hour model segregates and deprives ELLs of access to the curriculum.”

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.

But both Mr. Hogan and Mr. Bistrow said in interviews that the OCR maintains that the state’s simplification from three questions to one question on its home-language survey is a violation of federal law.

According to the OCR, said Mr. Bistrow, “kids are being missed.” He said Arizona districts haven’t, however, been able to show a “statistically significant” number of students haven’t received ELL services because of the changes in the home-language survey.

Mr. Hogan said that the OCR communicated the determination about Arizona’s home-language survey in an Aug. 3 letter to Mr. Horne.

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 the U.S. Department of Justice had also similarly determined that Arizona’s use of its English-language-proficiency test doesn’t comply with either Title VI or 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, the same judge now presiding over the evidentiary hearing, 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 he plans to argue during the hearing that the Flores case 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

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