What obligations does the government have to teach English in schools?

The Supreme Court heard a case on Monday about the requirements for states funding programs to teach English language learners.

Article from Education Week:

Supreme Court Weighs ELL Funding
By Mary Ann Zehr

In the first case about services for English-language learners reviewed by the U.S. Supreme Court since 1973, the justices seemed deeply divided today during oral arguments on whether a federal court had acted appropriately in ordering the Arizona legislature to provide sufficient funds for the state’s ELL programs.

Justices Stephen Breyer, Ruth Bader Ginsburg, and David Souter seemed to lean toward the parents’ side. And three others—Justices Samuel Alito and Antonin Scalia, and Chief Justice John Roberts Jr.—appeared to be more sympathetic toward arguments made on behalf of state lawmakers who believe they have satisfied a court’s order to serve ELLs well. In his questioning, Justice Anthony Kennedy seemed to strike a middle ground while Justices John Paul Stevens and Clarence Thomas remained silent.

In Horne v. Flores, the petitioners argue that compliance with the No Child Left Behind Act is sufficient in providing "appropriate action" to help students overcome language barriers, as required by the Equal Educational Opportunity Act of 1974.

A U.S. District court had ruled that Arizona violated the EEOA because its funding system for ELLs was "arbitrary and capricious" and didn’t have a rational relationship to the cost of programs. Also at issue is whether the U.S. Court of Appeals for the 9th Circuit in San Francisco was correct in upholding the lower court’s decision that a law passed by the Arizona legislature in 2006 did not satisfy that lower court’s ruling to provide adequate funding for English-language learners.

Acceptable Progress?
Much of the debate today focused on what level of academic progress is acceptable for English-language learners, and whether it was appropriate for a federal district court to require a funding solution for an educational problem.

No one denied that ELLs were not being served well more than 16 years ago, in 1992, when the case was first filed. The case became known as Flores v. State of Arizona in 1996, after Miriam Flores and her daughter by the same name joined the class action. ( "Roots of Federal ELL Case Run Deep," April 8, 2009.)

"There had been a failure" by the Nogales Unified School District, which has 6,000 students, to educate English-language learners well, Kenneth W. Starr, the lawyer for the state, acknowledged in his opening statement. But the U.S. Court of Appeals was wrong not to recognize that "the circumstances dramatically changed" from 2000, the time that the court first ruled that the state didn’t provide adequate funding for ELLs, to 2008, when the appeals court upheld that ruling. By then, Mr. Starr, argued, "Nogales was doing great."

But Sri Srinivasan, the lawyer for the Flores side, said, "What the district court found is that the improvements today, though significant, failed to reach the [Nogales] high school, and they were fleeting."

In addition, Mr. Starr, who gained fame as U.S. independent counsel during the Whitewater investigation of former President Bill Clinton, argued throughout the hour of debate, that passage of the No Child Left Behind Act "is one of the changed circumstances" that the appeals court should have considered, because of how the federal law altered the state accountability landscape for ELLs.

Justice Breyer questioned if, in fact, Nogales was "doing great" in educating ELLs. He cited statistics from court documents that show ELL performance in the Nogales district lagging dramatically on standardized tests behind the state average for all students.

"The exam is in English," explained Mr. Starr, implying that ELLs would be expected to lag behind.

Isn’t it the point, said Justice Breyer, "to teach the children to learn English?"

Later in the discussion, after pointing out for a second time the achievement gap between ELLs and all students in the state, Justice Breyer said, "They’ve made progress. They’re not quite home yet." Mr. Starr answered that the central question is "What is home?"

He argued that all Arizona is required to do under the Equal Educational Opportunity Act of 1974 is make a "good-faith effort at compliance," which it has done.

But Justice Souter said he understood the case to be centered, rather, on two deficiencies in the 2006 state law that the legislature had hoped would satisfy the court mandate to provide adequate funding. Those deficiencies, he said, are that the law limits funding for ELLs to two years and that federal funds can be used to supplant state funding for ELLs.

State Expansion Questioned
Justice Scalia expressed his discontent that the attorney general for Arizona had ever agreed that the court case, which originated in the school district of Nogales, should be expanded to apply to all districts in Arizona.

Chief Justice Roberts also questioned the appropriateness of the attorney general’s move to expand the case to all of Arizona. He said it was a way for him to go to the legislature for funding and say, “You don’t have a choice.”

Mr. Starr contended that the "attorney general was essentially siding with the plaintiffs."

Justice Roberts wondered aloud if it would have been preferable for the district court to have told Arizona to fix the problem of educating ELLs rather than mandating a funding solution.

And Justice Alito questioned an argument made by the Flores side that the proportion of state funding for ELLs, compared with funding from other sources, was insufficient. “What difference does it make where the money comes from?” he asked.

In his concluding statement, Mr. Starr said, "The state funding remedy here is extraordinarily intrusive and overreaching."

Thirty-five years ago, the court ruled that English-language learners had the right to a "meaningful opportunity" to participate in public education in Lau v. Nichols.

The justices are expected to rule on the Horne v. Flores case by June.

http://www.edweek.org/ew/articles/2009/04/20/30flores.h28.html?tkn=RZRFoaC2uSE4I9XijHopBjY6D6CiEz8LnV9L