Ninth Circuit: Arizona ELL funding not compliant
A federal appeals panel has ruled that English-language instruction law is so flawed that it "may well retard or reverse whatever progress has been" made in the instruction of more than 134,000 Arizona children who are struggling to learn English. But the 9th U.S. Circuit Court of Appeals in San Francisco said two changes in the measure could bring Arizona's long-running dispute over English-language instruction to a conclusion. “There is reason, then, to hope ... that this dispute, which has been in the courts longer than it takes a student to go from kindergarten to college, may finally be nearing resolution," Judge Marsha S. Berzon, writing for the three-judge panel, concluded. The court upheld a ruling by U.S. District Judge Raner Collins of Tucson, who determined that a law passed by the Arizona Legislature in 2006 failed to comply with a previous court ruling requiring improvements in instruction for English-language learners (ELL) in the state's public schools. Collins has set a March 4 deadline for the state to come up with a workable plan or face potential fines of up to $1 million a day. Evidence so far this session suggests lawmakers have not made much progress toward that goal, although the deadline is less than two weeks away. The court indicated Friday that changes in policy rather than more money would be the key to resolving the case. Collins had ruled that the law didn't meet federal standards for providing equitable education opportunities. He specifically criticized two components of the state law: that students could only benefit from English-learner funds for two years, and that the state could use federal dollars earmarked for poor students to supplant the state's investment in English learning. The appellate panel agreed that the Legislature needs to change those two aspects of the law.
Source: Arizona Republic, 2/23/08
[Editor’s Note: The 91-page opinion is below. The news reports at the next two links below indicate that Arizona GOP legislative leaders will ask the district court for more time to comply with the order and are signaling they will ask the U.S. Supreme Court to overturn the Ninth Circuit’s decision. Budget implications are explored at the next link, followed by a link to background on the case, including the Ninth Circuit’s and the district court’s previous rulings.
Other noteworthy aspects of this decision include that: (1) it represents a finance adequacy case pursued through federal law (the Equal Educational Opportunity Act, or EEOA) and federal courts, rather than state constitutional provisions in state courts; (2) in this era of “data driven decision-making” it affirms a ruling that there is no rational basis for setting state funding levels without any reference to costs; (3) it cites inadequate educational outcomes by ELL students and achievement gaps as evidence of inadequate funding; (4) it declines to “penalize” the plaintiff school district by finding that the progress achieved by the district’s sound management proves that funding is irrelevant; (5) it rejects the state’s argument that the No Child Left Behind Act (NCLB) essentially superseded EEOA obligations; and (6) of interest to NCLB testing controversies, it found: “There is absolutely no evidence in the record to support the proposition that a student’s need for ELL programs invariably vanishes after two years of instruction: Instead the evidence is squarely to the contrary, as all witnesses testified that some students would certainly take longer than two years to become proficient in English.”]
Flores v. Arizona, No. 07-15603 (9th Cir. Feb. 22, 2008)
Arizona Daily Star, 2/27/2008, By Howard Fischer (Capitol Media Services)
East Valley Tribune, 2/23/2008, By Howard Fischer (Capitol Media Services)
Arizona Republic, 2/26/2008, By Mary Jo Pitzl
NSBA School Law pages on Flores v. Arizona