Wayne E. Wright, PhD, is an Associate Professor in the Department of Bicultural-Bilingual Studies at the University of Texas at San Antonio, where he directs the Teaching English as a Second Language Program and teaches courses related to ELL teaching, literacy, assessment, policy, and research. A former bilingual, ESL, and SEI teacher in southern California, Wright received his PhD in Educational Leadership and Policy Studies from Arizona State University in 2004. His dissertation on the intersection of federal and state policies for ELLs in Arizona was awarded 1st place in the Outstanding Dissertation competition of the National Association for Bilingual Education. Wright is author of the widely used textbook Foundations for Teaching English Language Learners: Research, Theory, Policy, and Practice (Caslon, 2010) and numerous published articles in leading academic journals and books on policy and practices in language minority education. He is co-editor of the forthcoming Handbook of Bilingual and Multilingual Education (Wiley-Blackwell).
March 29, 2013 was a disappointing day for those who care about the education of English language learners (ELLs). Judge Collins of the Federal District Court for the District of Arizona issued a new ruling in the case Flores v. Arizona—a 21-year old lawsuit originally filed in 1992. This new decision overturned (vacated) the Court’s January 2000 ruling that the State’s programs for ELLs were a violation of the Equal Educational Opportunities Act (EEOA) because funding of ELL programs was “arbitrary and capricious,” and inadequate to address students’ needs. While the case is specific to Arizona, the implications are nationwide.
Despite this recent defeat, great credit is due to attorney Timothy M. Hogan, Executive Director of the Arizona Center for Law in the Public Interest. For over 2 decades Hogan and the Flores decision have been a thorn in the side of the Arizona legislature and Department of Education, forcing policymakers to acknowledge and address the needs of ELLs. The original decision led to the Flores Consent Decree in August 2000 in which the state outlined concrete steps to address issues of ELL program inadequacy and monitoring. It also led to some increases in state funding for ELLs, though never to an acceptable level.
Sadly, policymakers engaged in a variety of stall tactics to avoid fully complying with the court’s mandate. For example, it took the state over 5 years to carry out a simple cost study acceptable to the court to determine the amount needed to adequately fund ELL education. Policymakers then refused to raise funding to even the minimum suggested level. Instead they worked to decrease the official number of ELLs by (1) under-identifying incoming ELLs through the use of an over-simplified single-question home language survey, and (2) re-classifying ELLs as fluent English proficient before they were actually proficient, by changing language proficiency tests and lowering passing standards. In other words, rather than increase funding for ELLs, the state sought to artificially lower the number of ELL students it would be required to fund. In 2010, The U.S. Office of Civil Rights (OCR) found these practices to be violations of the rights of ELL students (see OCR letters – August 3 & August 27).
Under increasing pressure of mounting fines from the court due to failure to comply, state policymakers undertook aggressive legal measures to appeal the ruling all the way to the U.S. Supreme Court. The state argued that so much had changed in the state in terms of policies, programs, and funding for ELLs (i.e., Proposition 203’s mandate for sheltered English immersion (SEI), No Child Left Behind, state testing and accountability, and a new 4-hour model of SEI) that the original ruling should no longer apply. They also argued that since the lawsuit originated with plaintiffs from the Nogales Unified School District, the rulings should never have applied statewide. In a split 5-4 decision, the U.S. Supreme Court found merit in the state’s argument, but sent the matter back to the District Court to re-examine the case in light of these “changed circumstances.” The District Court ultimately ruled in favor of the state and vacated the 2000 ruling.
It is important to understanding that the court DID NOT endorse the state’s policies and programs for ELLs through this decision. Rather, the court’s decision was based on very narrow legal grounds centered on 3 overarching findings of fact:
Absent in the ruling is any compelling evidence of improved educational outcomes for ELLs. No mention of ELL AIMS test scores or the large gap between ELLs and other students. Only reclassification rates between 2005 and 2010 are included, which generally improved statewide, but fluctuated in Nogales. The ruling acknowledges, however, that English proficiency tests were changed three times (SELP, AZELLA1, and AZELLA2), along with changes in testing procedures, thus making meaningful comparisons difficult. And even with what appears to be “improvements,” the state is far from achieving its goal for “ELLs to become fluent English proficient in a year” through its SEI model. In fact, the ruling notes the “Department of Education was unable to provide the Court with information regarding the average length of time it takes for ELL students to test proficient on the language assessment test” (p. 18). The ruling also made no mention of the state’s documented civil rights violations to artificially lower the number of ELL students through under-identification and premature reclassification strategies.
Finally, the lack of the court’s endorsement of the state’s ELL policies and programs is clearly evident in the closing statement of the decision:
It appears that the state has made a choice in how it wants to spend funds on teaching students the English language. It may turn out to be penny wise and pound foolish, as at the end of the day, speaking English, and not having other educational gains in science, math, etc. will still leave some children behind. (pp. 22-23)
Hogan and his Center have already appealed to ruling to the Ninth Circuit Court of Appeals, “because we believe that the state’s policy is not only ‘penny wise and pound foolish’ but unlawful as well.” This appeal (Flores v. Huppenthal et. al) is likely the beginning of another long legal battle that will keep pressure on state policymakers. However, the Flores experience also demonstrates the limitations of court litigation to bring about needed changes, and exposes tactics that can be undertaken by policymakers adamantly opposed to allocating resources and supporting policies to improve ELL education, despite court mandates. This reveals the urgent need for continuing grassroots advocacy efforts and effective local policy and program decisions for ELLs to compliment such major lawsuits.
Flores v. Arizona, U.S. District Court for the District of Arizona, Case No. 92-CV-596-TUC-RCC, Document 1082, Filed 3/29/13