Roots of Federal ELL Case Run Deep

By Mary Ann Zehr — April 06, 2009 12 min read
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Seventeen years ago, Miriam Flores sent her 5-year-old namesake off to school in this small city on the U.S.-Mexican border. Come fall, she’ll send 5-year-old Isabella, her youngest, and this time around, the 42-year-old Mexican-born homemaker hopes her daughter will get a better education.

The U.S. Supreme Court will hear oral arguments later this month from a class action Ms. Flores joined on behalf of her first child in 1996. The lawsuit, Flores v. State of Arizona, contends that programs for English-language learners in Nogales are deficient and receive inadequate funding from the state.

Since it was filed in 1992, the lawsuit has pitted state officials against one another, and it has forced Nogales and school districts statewide to change the way they serve English-learners, including separating them for long periods of the day from other students.

Steel fencing separates the shopping district of Nogales, Ariz., from a neighborhood in Nogales, Sonora, on the Mexican side of the border. Some residents maintain homes in both communities.

Its outcome before the Supreme Court could have further ramifications, not only for Arizona but also for districts and ELLs nationwide.

One of the state’s arguments is that compliance with the No Child Left Behind Act trumps civil rights law, said Roger L. Rice, the executive director of Multicultural Education, Training, and Advocacy Inc., a Somerville, Mass.-based advocacy group for ELLs.

“If the court were to buy that argument,” said Mr. Rice, “that would mean that if people around the country said, ‘My state doesn’t have an appropriate program for ELLs,’ the state could say, ‘We get our funding from NCLB [and comply with the law], so we must be doing all right.’ ”

On the other hand, he said, if the court ruled in favor of the Flores side of the case and said clearly that states have an obligation to sufficiently fund ELLs under civil rights law, advocates could go to court in states that don’t provide any additional funds for such students and make the same argument that the Nogales parents have made.

‘Caught in the Middle’

Ms. Flores says the case has dragged on for too long to have made a difference for daughter Miriam Flores, now 22 and a student at the University of Arizona in Tucson.

“You can say there is discrimination for the kids who don’t speak English [in Nogales], because the quality of education isn’t the same for them,” Ms. Flores said in Spanish. “Politics” has been a hindrance in resolving the matter, she added. “The Republicans say ‘no’ to more money. The Democrats say ‘yes.’ Education is caught in the middle.”

Timeline of Flores Case

August 1992: Parents on behalf of their children in the Douglas and Nogales school districts file a lawsuit in U.S. district court against Arizona, arguing that the state hasn’t properly administered or financed instruction for English-language learners.

November 1996: Miriam Flores and her daughter of the same name, along with Rosa Rzeslawski and her son Mario Rzeslawski of Nogales, join the case. Douglas schools aren’t mentioned.

January 2000: U.S. District Court Judge Alfredo Marquez rules that the state’s funding for ELLs is “arbitrary and capricious” and orders the legislature to come up with a plan to provide sufficient funds for ELLs.

June 2000: The state enters into a consent decree with the plaintiffs that includes requirements for the Arizona state board of education and education department to adopt rules for ELL programs and monitoring.

March 2006: The state legislature approves a bill to address the court order. Gov. Janet Napolitano lets it become law, but predicts it won’t pass muster with the court. One provision of the bill requires that ELLs be separated from other students to learn English skills four hours a day. Leaders of the legislature and Mr. Horne enter the legal battle, contending that the legislation resolves the matter.

March 2007: U.S. District Judge Raner C. Collins rules that the 2006 legislation falls short of meeting the court’s order.

December 2007: Legislative leaders and schools chief Tom Horne argue before the U.S. Court of Appeals for the 9th Circuit that Judge Collins is violating federal law by ordering the state to increase funds for ELLs.

February 2008: The U.S. Court of Appeals for the 9th Circuit upholds Judge Collins’ ruling.

September 2008: Mr. Horne and Republican lawmakers ask the U.S. Supreme Court to review Flores v. State of Arizona.

January 2009: The U.S. Supreme Court agrees to consider the appeals.

SOURCE: Education Week

Nogales sits in the desert about 60 miles south of Tucson. Many residents speak both English and Spanish, but in restaurants and stores and at home, many prefer Spanish. They live and shop on both sides of the border, and some have homes in both Nogales, Ariz., and Nogales, Sonora, in Mexico. Almost all of the Nogales district’s 6,000 students and many of its educators are Latinos; 1,700 students are ELLs.

The younger Miriam Flores started kindergarten in the 1991-92 school year at Coronado Elementary School without knowing English at a time when the district provided bilingual education for English-learners. Her mother recalls that in grades K-2, her daughter received all instruction in Spanish.

Then in 3rd grade, she had a monolingual English teacher without a bilingual teaching assistant, and the child couldn’t understand what was going on, according to her mother.

Ms. Flores said the teacher told her that her daughter, who Ms. Flores viewed as timid, talked too much in class. The reason, Ms. Flores concluded, was that Miriam was asking other students what the teacher was saying. The girl’s formerly good grades dropped.

“How was the teacher not able to recognize that the child had a problem with the language?” Ms. Flores said, asserting that teachers of ELLs weren’t adequately trained then and still aren’t.

On Her Own

Longtime educators at Coronado tell a slightly different story, though they don’t remember the particulars of the younger Miriam’s 3rd grade year.

Perri Brubaker, an ELL teacher who taught at Coronado then and now, said Miriam would have received several hours of daily language instruction from a bilingual teacher that included English lessons. The rest of her day would have been spent with a regular teacher, who could have been bilingual or monolingual.

Ms. Brubaker said 3rd grade was a year of transition from Spanish to English for ELLs, so that by January, Miriam would have received lessons only in English.

The younger Miriam Flores herself remembers that she got D’s and N’s for “nonsatisfactory” in 3rd grade, and said, “It was worrisome, because I wasn’t really sure what I was doing wrong.”

She said she did better in later grades, though always struggled with math. Her high school classes included Advanced Placement U.S. History and International Baccalaureate English, though it was hard for her to meet the reading and writing demands.

Andrea Sanchez, left, reads an English exercise out loud while leaning against Diane Medina during an English-language-development class at Nogales High School.

“I had to learn English on my own with other peers, and sometimes their English wasn’t very good either,” the younger Ms. Flores said.

She now has a data-entry job for 20 hours a week and is majoring in Mexican-American studies, while also taking prerequisite classes to enter the University of Arizona’s nursing program.

Ms. Flores said her second daughter, Michelle, 13, fared better in Nogales schools, but attributes that to the private preschool Ms. Flores and her husband, a civil-engineering consultant, sent her to a few days a week so the girl could begin public school with some English skills.

The school system was already changing in Michelle’s early years.

In 2000, Arizona voters passed Proposition 203, which greatly curtailed bilingual education in the state. Nogales switched to English-only instruction.

Michelle received English-as-a-second-language classes at Coronado Elementary and was reclassified as fluent in the language in the 4th grade. All three Flores children are U.S. citizens.

Over the years, lawyers for the Nogales parents and students, from the Arizona Center for Law in the Public Interest, have argued that Arizona doesn’t provide adequate money for the schooling of English-language learners. Back in 2000, U.S. District Court Judge Alfredo Marquez declared the state’s funding system for ELLs “arbitrary and capricious” and ordered the legislature to create a plan to provide sufficient funds.

Later that year, in a consent decree, the state agreed to adopt rules for ELL programs and monitoring. A U.S. Circuit Court ruling in February 2008 said that Nogales had made great strides since 2000 in improving programs for ELLs. “The improvements it has made, however, appear to be due largely to successful management rather than to adequate state funding for ELL programs,” the court said.

It went on to note that since the 1999-2000 school year, the state has increased to $365 from $156 the extra per-pupil amount that schools statewide receive for each ELL and that the district spends $1,570 extra per pupil on ELL programs.

If state funding for those students increases, school administrators here say they will establish preschool programs, increase the number of after-school and Saturday programs, boost training for teachers to work with ELLs, and buy more materials.

‘Come a Long Way’

Angelina Canto, the school improvement director for the Nogales district, who hopes the Flores side prevails, said the district has “come a long way” in improving services for ELLs. She acknowledges, though, she can’t say definitively that academic achievement for English-language learners in Nogales has improved since the Flores case was filed, because programs, tests, and the definition of such students have changed so much.

The February 2008 appeals court ruling says test scores of ELLs in Nogales are lower than the statewide averages for all students, figures that include ELLs and others. But the ruling also notes that four of the district’s six elementary schools ranked in the top 10 in the state for ELL performance, according to a survey by the Arizona education department using 2005 test results.

Ms. Brubaker and Lili McPherson, another teacher for ELLs at Coronado Elementary School, said they hope the Flores side wins, because they believe the state needs to better support ELL programs.

Five-year-old Isabella Flores licks cake batter off her fingers as she helps her mother, Miriam Flores, make cupcakes in the kitchen of their home in Nogales, Ariz.

But Shawn A. McCollough, who became superintendent of the district last year, has a different take.

“From my vantage point, Nogales gets adequate funding from the state, because I don’t believe that funding is critical for the success of a student,” said Mr. McCollough, who calls the court case a “political volleyball.”

For the first time this school year, districts have to implement a 2006 state mandate that many here in Nogales see as a byproduct of the Flores case. The state law requires that ELLs be separated from other students for a four-hour daily block to acquire English skills until they pass the state’s English-language-proficiency test. The legislature passed the measure as part of a law meant to comply with a court order stemming from the lawsuit.

The Nogales superintendent is opposed to the mandate because he says it promotes “segregation” rather than “inclusion” for ELLs.

The state provided $40.6 million this school year for Arizona’s school districts to carry out the new program.

Ironically, the Nogales district didn’t get any of that money because of the distribution formula. It primarily paid for additional teachers to reduce class sizes, Ms. Canto explained. Because the district had already done that, it didn’t qualify for the funds. “You can’t look at a district that has so many ELL students and say it doesn’t qualify for funding. It flies in the face of reason,” she said.

Teachers and administrators on the ground here say they are preoccupied this school year with the task of implementing the four-hour block of English.

Some teachers at Coronado Elementary say the four-hour block seems to be working for English-language learners because they are getting more attention than previously. The class size for ELLs in the 4th grade, for example, is 12, while classes in the same grade with fluent English speakers average 25.

However, teachers and students both say that with the increased emphasis on teaching English skills, subjects such as science and social studies have been cut back for ELLs. “We don’t really do science,” said a 4th grade boy.

At Nogales High School, ELLs are grumbling about the required four-hour block, and some teachers oppose it as well. Many ELLs who had been taking only regular classes are being required to take four hours of English each day.

The number of ELLs being served in special programs by the high school increased to more than 300 students from 117 last school year, and the number of teachers for ELLs increased to nine from three.

The students worry they won’t acquire enough credits to graduate in four years, which their administrators acknowledge is a valid concern. In a class of 21 ELLs at an advanced level of proficiency in English, at least seven said they had been attending Nogales schools since kindergarten.

Maximiliano Bonorand, 16, a 10th grader who was born in Tucson but has spent his whole school career in Nogales, said he was in regular classes last school year and doesn’t think he needed the four-hour English block this school year. “I speak and write English better than Spanish,” he said.

The youth said he’ll have to take summer school courses in order to graduate on time. Mr. Bonorand said he tried hard this spring to pass the English-proficiency test and succeeded. So next year, he’ll be back in regular classes.

Many educators here say it would be more reasonable for the state to require two hours of English each day for ELLs rather than four, and note that through the Flores litigation, they got a mandate they don’t want.

Officials Divided

Nogales parents in Flores are not contesting the new program. Still, they’ve not been satisfied with the level of support given ELL programs, and the courts have continued to side with them.

In 2006, the legislature passed a bill that included a modest increase in funds for ELLs to address the 2000 court ruling. Then-Gov. Janet Napolitano let the legislation become law, even though she predicted it wouldn’t pass muster in court.

U.S. District Judge Raner C. Collins decided the law was inadequate to resolve the matter, and in a Feb. 22, 2008, ruling, the U.S. Court of Appeals for the 9th Circuit agreed. After losing at the appellate level, Republican lawmakers and state school Superintendent Tom Horne took their case to the U.S. Supreme Court, which is expected to make a ruling by June.

State officials have been divided on the case. Arizona Attorney General Terry Goddard, a Democrat, filed a brief trying to persuade the Supreme Court not to take up the matter. As governor, Ms. Napolitano, a Democrat who is now the U.S. Secretary of Homeland Security, fought the Republican-controlled state legislature to provide more funding for ELLs.

But Janice K. Brewer, a Republican and the new governor of Arizona, on March 11 directed Mr. Goddard to file a brief in the U.S. Supreme Court backing the positions of Mr. Horne and the leadership of the legislature.

On the parents’ side in the case is the Obama administration, which filed an amicus brief on March 25, arguing that the state should provide more money for the education of Arizona’s 150,000 ELLs.

The appeal from Arizona’s Speaker of the House, Kirk Adams, argues that the federal court is illegally requiring the state to increase funding for ELL programs. It says the state has already done much to improve such programs since the lawsuit was filed, including stepping up monitoring.

“Contrary to the assumptions indulged by the courts below, increased program funding is not necessarily the best path toward improving educational opportunities,” says the appeal, filed by a team of lawyers that includes Kenneth W. Starr, a lawyer for Kirkland & Ellis in Los Angeles.

Mr. Horne argues in a separate appeal that the federal court is wrong in having ruled that the state is not providing “appropriate action” for ELLs under the Equal Educational Opportunity Act of 1974. The state complies with specific requirements for such students under NCLB, and that should be sufficient, he said in a phone interview. In addition, he says, the court has acknowledged that the state has greatly improved programs for ELLs in Arizona, and the courts shouldn’t care whether funding comes from the state or local sources.

Ms. Flores says that even if the Supreme Court rules in her favor, it may take years for Nogales parents to see the effects of the win. “We’ll see when the children are professionals that we have won,” she said.

A version of this article appeared in the April 08, 2009 edition of Education Week as Roots of Federal ELL Case Run Deep


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