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Supreme Court Orders Fresh Look at Arizona ELL Case

By Mary Ann Zehr — June 25, 2009 4 min read
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The U.S. Supreme Court ruled today in favor of Arizona officials who had challenged lower federal court decisions that the state must provide adequate funding for its English-language learners.

In a 5-4 decision, the court decided in Horne v. Flores that the lower courts didn’t fairly consider “changed circumstances” that had occurred since parents in the Nogales, Ariz., school district had filed the original lawsuit in U.S. District Court.

The nation’s highest court said the case must be sent back to the lower courts for a proper examination of at least four factual or legal changes that have occurred since the 1992 filing of the original lawsuit. One of those changed circumstances, the court noted, is implementation of the federal No Child Left Behind Act.

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Justice Samuel A. Alito Jr. wrote the majority opinion. In particular, Justice Alito said, the lower courts must revisit whether the federal district court made a mistake in seeking a statewide solution to the complaint that programs for ELLs in the Nogales school system were underfunded and inadequate.

“The record contains no factual findings or evidence that any school district other than Nogales failed (much less continues to fail) to provide equal educational opportunities to ELL students,” he wrote. “Nor have respondents explained how the [Equal Educational Opportunities Act] could justify a statewide injunction when the only violation claimed or proven was limited to a single district.”

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

Justice Stephen G. Breyer wrote the dissenting opinion. “The lower courts did ‘fairly consider’ every change in circumstances that the parties called to their attention.” He wrote that the decision risks denying ELLs the instruction they need to overcome language barriers and receive an education equal to that of other children.

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

Is the Program Working?

Timothy M. Hogan, the executive director of the Arizona Center for Law in the Public Interest, a lawyer for the Nogales parents, said he was disappointed in the ruling. At the same time, he said, “this ruling is going to give us an opportunity to fully explore whether the state’s new program [for ELLs] is working or not.”

Mr. Hogan said he believes the current program isn’t working in three of the four areas that the Supreme Court said must be re-examined: a new methodology for teaching English-language learners, enactment of the No Child Left Behind Act, an increase in the overall funding for ELLs, and changes in programs in Nogales.

The Nogales parents and their lawyers will demonstrate to the lower courts that the state is failing ELLs in the first three of those four aspects, Mr. Hogan said.

Superintendent of Public Instruction Tom Horne said that he just released statistics this week showing that over the past two years, the state more than doubled the percentage of its English-language learners who are reclassified each year as fluent in English. The proportion of the state’s 143,225 ELLs who were reclassified increased from 12 percent to 29 percent.

Added Mr. Hogan, “If 29 percent is considered successful, that’s a pretty dismal standard, it seems to me.”

The parents who brought the lawsuit had contended in federal court that by not providing adequate services for English-language learners, the Nogales school district, where 1,700 of 6,000 students are ELLs, violated the Equal Educational Opportunities Act. The law requires that districts take “appropriate action” to help students overcome language barriers. In January 2000, U.S. District Judge Alfredo Marquez ruled that Arizona’s funding for English-learners was “arbitrary and capricious,” and he ordered the state to come up with a plan to provide adequate funds for such students.

The state legislature approved a bill in March 2006 to address the court order, but U.S. District Judge Raner C. Collins ruled that the legislation fell short of meeting the requirements of the court. In February 2008, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld Judge Collins’ ruling, which was challenged by both the leadership of the Arizona legislature and Mr. Horne.

The case has pitted Arizona officials against each other. In Horne v. Flores, Arizona Attorney General Terry Goddard, a Democrat, filed a brief supporting some of the arguments of the Nogales parents. He declined to follow direction from Janice K. Brewer, a Republican who became the governor this spring, to file a brief in the Supreme Court backing the positions of Mr. Horne and state lawmakers.

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