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A Glimpse of What's to Come in Flores v. Arizona?


The U.S. Supreme Court is expected to hear arguments in the case of Flores v. Arizona in April. The lawsuit was filed in 1992 and concerns whether Arizona adequately funds the education of English-language learners.

In the meantime, the Arizona Republic continues to print opinions on the case, including that of Tom Horne, the Arizona superintendent of public instruction, who is one of the parties who asked the nation's highest court to take up the case.

For columnist E.J. Montini's take on the lawsuit, read "Kids Still Losers in English-Learner Suit," published Jan. 15. For Mr. Horne's response to Mr. Montini's column, read "Different View of English-Learner Progress," published Jan. 24.

Let me provide some information about the education of ELLs in Arizona that was recently published in Quality Counts 2009:

--Arizona is one of three states (the others are Florida and New York) that require all prospective teachers to show they are competent to teach ELLs.
--4.9 percent of Arizona's ELLs (grades 4 and 8 averaged) tested proficient in math on the National Assessment of Educational Progress in 2007, compared with 9.6 percent nationwide. 3.3 percent of Arizona's ELLs tested proficient in reading on the NAEP that same year, compared with 5.6 percent nationwide.
--Arizona is one of 32 states with a funding formula that includes weights or adjustments for ELL students. But it's also one of 24 states that permits that money to be used for any educational purpose and doesn't require it to be used for ELLs. Ten states don't provide any additional funds for ELLs.
--In the 2006-07 school year, Arizona reclassified 10.7 percent of its ELLs as fluent in English, compared with the national average of 12.9 percent.

It will be interesting to see if any of this data will surface in court documents or oral arguments.


I work in one of those states with no ELL funding and am also watching this case closely. The point about below average ELL NAEP scores in AZ may not be relevant if NAEP scores for non-ELLs in AZ also below average.
Thanks for your reporting and blog.

Thanks for initiating this wonderful forum to discuss education issues as they pertain to ELL. I do not think that the Flores case will affect either way the quality of instruction offered to ELL, but it could help to influence policy direction.

Ms. Zehr,

I've read a few of your articles on Flores v. Arizona, and I think it's great that you are addressing and communicating these issues to the broader public. However, I feel the need to address a few points.

First - Although the state of Arizona is a defendant in this case, it had actually sided with the plaintiffs. Former Governor Napolitano and the Attorney General, acting as agents of the State, were both in agreement that Arizona's latest attempt to fund ELL education [HB 2064] was completely inadequate. Also, the Arizona Board of Education was of the same sentiment. The only person really pushing this suit through the courts is Mr. Horne, state superintendent of public education, and the two intervening legislators. And this technically isn't an appeal from the initial court decisions that levied an order against the state; it's a separate motion for a relief from judgment, which usually requires a much stronger showing on the individuals filing the motion.

Second - The Ninth Circuit found Mr. Horne's standing to bring this motion tenuous, as he is an agent of the Board of Education (that agrees the new law is not adequate). The Supreme Court could decide this entire case by making the opposite conclusion on the issue of standing. So if Horne does not have standing to bring this motion, this whole issue could disappear and leave Arizona left in the same position it has been in since 2000, i.e. with a court order mandating that it provide adequate funding for ELL education. This wouldn't resolve any of the substantive issues that educators are probably hoping get addressed, like whether a federal court can order a state to provide more funding for ELL education. Sadly, since this might be the easiest way out, the Supreme Court might go with it to avoid dealing with the issues of federalism that it would otherwise have to address.

Third - While I do agree that state funding should largely be in control of the states, this is an issue where the federal judiciary should be able to step in. The EEOA, the federal law at issue [not NCLB], is designed to guarantee all students an equal chance for educational opportunity. It doesn't allow a court to tell a state exactly how much it should be spending or how it should utilize these funds, but it does allow a court to say that the funding is clearly inadequate and inappropriate in order to protect the civil rights of students. If the courts are not allowed to make this judgment, that leaves a state free to essentially deny an education to certain groups of students. Imagine if Arizona decided $1 was the appropriate incremental amount to spend for ELL programs - a vast amount of students in Arizona would then be relegated to the very bottom tier of society because the state has denied them the opportunity to get an education. I cannot accept that. When most of the studies report the incremental costs of educating ELL students to be between $1,000-$2,000, I think the court can clearly point to the fact that $400/student is completely inadequate.

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