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English Learner Ruling Challenges State's Lax Oversight

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By David Menefee-Libey and Charles Taylor Kerchner

Everybody's talking about the Vergara case (including us), but now there's another lawsuit rattling California's education system.

On Tuesday, August 12, Los Angeles Superior Court Judge James Chalfant ruled that the California education system was breaking the law and denying education to English Language Learners.

As John Fensterwald at EdSource reported:

[T]he ACLU of Southern California and the Asian Pacific American Legal Center brought [the case, D.J. vs California] against the state Department of Education, the State Board of Education and state Superintendent of Public Instruction Tom Torlakson. The lawsuit, filed last year, claimed that the state failed in its legal obligation to ensure that all English learners get the language instruction to which they were legally entitled. The half-dozen unnamed English language learners in the lawsuit were among the 20,318 students whom school districts acknowledged in a 2010-11 annual survey were not being served.

Those students constituted less than 2 percent of the state's 1.4 million English language learners. The failure of the state to act on their behalf violated a 30-year-old federal law as well as the state Constitutional guarantee that all students are entitled to an equal opportunity for an education, Chalfant ruled.

In the key passage in the decision, Chalfant pointed the legal finger of responsibility directly at the state:

A state cannot abdicate its supervisory responsibilities by ignoring credible evidence of persistent or significant district noncompliance," Chalfant wrote in his 45-page ruling. "If districts fail to provide services (to English language learners) and the state has notice of this failure, the state has a duty ... to take reasonable action." Chalfant ordered the state to present a plan that will ensure services are effectively provided.

The case is complex and often technical with lots of twists and turns, and we will have more to say about it later.  As the decision shows, the claim that 20,000 students were denied services is drastically overstated, and the claim that they were was based on an arcane and antique reporting system, since abandoned.  Two of the three students who brought the suit were found not to have a legal standing.  They spoke English well, had been redesignated as English fluent, and were doing well in school.  At the same time, it is clear that the state's system was more aimed at putting students in the correct categories than assuring that they got good instruction.

To us, the importance of the case lies in the remedies sought.  Although, the petitioners have not filed their proposed judgment, in a 2013 report the ACLU proposed much more extensive state oversight of how English learners are taught.  In one recommendation, it says, "the State should track whether services are actually being provided, by conducting site visits or through some other independent monitoring process, to ensure that districts are actually providing EL services (rather than simply putting credentialed teachers in the classroom but providing no specialized instruction)" [p. 13].

To us, this brings the state to a threshold in which it can continue to engage in costly and extremely costly compliance regimes, which experts in school finance have declared counterproductive, or it can craft a creative response that provides a learning infrastructure for English Language Learners that also allows the students themselves, teachers, student's families, and ultimately state to track their progress, as the petitioners ask.  A satisfactory remedy needs to expand the capacity of ELL instruction, not just count heads or look at lesson plans.

We'll have more to say about this in future posts, but in simple terms, the state can be dumb about this, or it can get smart and inventive.

(David Menefee-Libey is professor of politics at Pomona College.)

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