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Texas Likely to Appeal Court Ruling on English-Language-Learner Programs

By Mary Ann Zehr — August 12, 2008 5 min read
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Texas officials say that they are likely to appeal a federal court order telling the state it must, by the 2009-10 school year, revamp programs for English-language learners in grades 7-12 and improve monitoring of programs for ELLs in all grades.

But the July 25 order in the long-running case of U.S. v. Texas has drawn praise from ELL advocates, who hope it will spur improvement of the quality of education for English-language learners in middle and high schools across the nation.

The ruling “will end up forcing the state to address an often-ignored problem in education, and that is the quality of education for English-language learners at the secondary level,” said David Hinojosa, a staff attorney for the Mexican American Legal Defense and Educational Fund, and a lawyer for the plaintiff organizations.

In his decision, U.S. Senior District Judge William Wayne Justice reversed a ruling he issued in July 2007 that Texas was complying with federal law in how it educated ELLs.

See Also

For more discussion on this topic, read Learning the Language, edweek.org’s blog on English-language learners.

This time, Judge Justice concluded that secondary education programs for ELLs violate the federal Equal Educational Opportunities Act of 1974. He gave the state until Jan. 31 to devise a plan to revamp secondary education programs and the monitoring system for all grades.

The judge reversed his earlier decision after taking a closer look at achievement levels of secondary school ELLs at the request of the plaintiffs, their lawyers say.

In response to the ruling, the Texas Education Agency on July 28 sent a two-sentence statement to Education Week stating: “We’re disappointed that Judge Justice reversed the original order he issued in this case a year ago. We’re continuing to study this latest ruling, but it is likely that we will ask the attorney general to appeal it.”

Long-Running Dispute

Judge Justice, who is in his late 80s, is the same judge who decided in a landmark case that undocumented students have the right to a free K-12 education, a ruling that the U.S. Supreme Court affirmed in its 1982 decision in Plyler v. Doe.

The judge’s 95-page opinion July 25 from the U.S. District Court for the Eastern District of Texas of Tyler, Texas, last week came in response to a motion filed by two Hispanic civil rights organizations in 2006 that sought relief for ELLs under the federal court’s continuing jurisdiction of the U.S. v. Texas case, which began in 1970.

The judge had harsh criticism for the quality of the state’s ELL services, saying: “After a quarter century of sputtering implementation, defendants have failed to achieve results that demonstrate they are overcoming language barriers for secondary [limited-English-proficient] students.”

Judge Justice wrote that because secondary ELLs are doing so poorly in school according to a number of measures—including their scores on state tests and retention rates—Texas must revamp instruction.

Since 1981, Texas has required bilingual education in kindergarten through 6th grade in school districts with 20 or more ELLs in a grade. In the 2005-06 school year, the ruling says, 376,170 ELLs in all grades were in bilingual education, compared with 280,324 in English-as-a-second language programs.

The ruling says that almost all of the 140,000 English-learners in grades 7-12 receive ESL instruction instead of bilingual instruction. The judge concludes that the degree of limited-English-proficient students in secondary schools “further indicates that the change from bilingual education to ESL education [between the elementary and secondary levels] is the primary culprit.”

But he also says that one option for Texas may be to continue with “a variation of the current ESL program with substantially enhanced remedial education.”

Advocates Pleased

The lawyers representing the two organizations which filed the 2006 motion—the GI Forum and the League of United Latin American Citizens—hope the ruling will have an impact well beyond Texas.

The ruling sends the message to education officials in Texas and elsewhere that the requirement of federal law “is that these kids ... have to do as well as native English speakers ultimately,” said Roger L. Rice, a lawyer and the executive director of the Somerville, Mass.-based Multicultural Education, Training, and Advocacy. “It’s not enough that you are making a little progress but most are dropping out.”

Mr. Hinojosa said the state argued “that these students have just arrived here, they’ve only been here a couple of years so, of course, they aren’t going to be doing well.”

Such an argument is “an excuse, not a reason” why ELLs in middle and high schools are failing, he said. He noted that 87 percent of ELLs in Texas have attended U.S. schools for three or more years, a statistic also cited by Judge Justice in his opinion.

Russell W. Rumberger, the director of the Linguistic Minority Research Institute at the University of California, Santa Barbara, said that his examination of performance of ELLs on the National Assessment of Educational Progress, backs the judge’s conclusion that such students are doing much better at the elementary school level than at the secondary level in Texas.

In 4th-grade reading and mathematics, Texas ELLs scored higher than the national average on naep, and the state had a smaller achievement gap than average between ELLs and non-ELLs, he said.

But he added, “In grade 8, English-language-learner achievement [in Texas] is below the national average and the achievement gap is larger than the national average.”

Researchers Weigh In

Diane August, the co-editor of a report of the National Literacy Panel on Language-Minority Children and Youth, said that while only a handful of studies focus on developing literacy among English-language learners at the secondary level, two of those studies favor bilingual education over English-only methods at that level.

She surmises that middle and high school ELLs aren’t doing well in Texas because they don’t have the background knowledge or understanding of academic English, the language used in school as opposed to the playground, to do well at the higher grades.

“You look at states like Texas where their focus has been entirely on reading and math to the exclusion of giving students access to content, and you have problems,” she said.

Deborah Short, a researcher with the Washington-based Center for Applied Linguistics, would advise Texas officials to build on middle or high schools that are doing a good job with ELLs.

“There are pockets [of success] here and there, but I don’t think we have any state models that have the evidence that they have been successful for students in the long term,” she said.

The lawyers for the plaintiffs said they are not calling for Texas to switch to bilingual education at the secondary level. Texas is already having difficulty finding enough certified bilingual teachers at the elementary school level, Mr. Hinojosa noted.

He said one option for the state might be to give substantive training to all teachers who serve ELLs on the secondary level in how to work with such students.

“There are methods other than putting students in a 45-minute English lab and then putting them in the [mainstream] classroom for the rest of the day,” he said.

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A version of this article appeared in the August 13, 2008 edition of Education Week as Texas Likely to Appeal Court Ruling on English-Language-Learner Programs

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