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Judge Orders Partial Disclosure of Ariz. Researchers' ELL Data

A federal judge ruled yesterday that two Arizona universities had to partially comply with a subpoena for a federal court case asking them to turn over data associated with research studies on Arizona's approach to educating English-language learners. Researchers for the studies had promised participants that names of schools, school districts, and individuals involved would remain confidential.

Judge Raner C. Collins, of the U.S. District Court in Tucson, issued an order yesterday saying the universities must provide the names of schools and school districts involved in the studies, but not the names of individuals who participated.

Lawyers for Tom Horne, Arizona's chief state school officer, have requested in a subpoena data from three studies that had been conducted for the Civil Rights Project at the University of California, Los Angeles. The studies were carried out by one researcher from the University of Arizona, Tucson, and one from Arizona State University, Tempe, who are scheduled to be expert witnesses in the federal court case, Horne v. Flores. That case about how Arizona educates its ELLs was heard by the U.S. Supreme Court in April 2009 and remanded in July 2009 to the U.S. District Court in Tucson. An evidentiary hearing for the case, called Flores v. State of Arizona in the U.S. District Court, is set to start Sept. 1.

The studies take a critical view of Arizona's requirement that all English-language learners be separated into classrooms for four hours each day to learn discrete English skills. I wrote an article for EdWeek on Aug. 12 about how Patricia Gándara and Gary Orfield, the co-directors of the Civil Rights Project, characterized the request in the subpoena as an "egregious misuse of power and of intimidation" in a letter distributed to colleagues over the Internet. They worried that the subpoena's request for the release of data that had been promised to be confidential would discourage educators from participating in research in the future.

Eric J. Bistrow, a lawyer for Horne, has argued he needs the data to evaluate the accuracy of the information provided in court by the expert witnesses for the Flores side of the case.

The judge's order says that "[d]efendants are not entitled to the names of any individual research participants nor the names of any university students who conducted site visits." However, it also said that "[d]efendants are entitled to know the identity of the schools and school districts included in the research." The judge added that if a school or school district is so small that disclosure of its name would lead to discovery of the names of individual participants in studies, that school or district name doesn't need to be disclosed.

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