A legal leap into Neverland
Mar. 28, 2007
Latest English-learner ruling defies logic, translation
The most recent decision in Arizona's English-learner lawsuit is another
adventure in a legal Neverland.
The adventure began with a federal law: the Equal Educational Opportunities Act.
That act requires a state educational agency "to take appropriate action to
overcome language barriers that impede equal participation by its students in
its instructional programs."
Now, there was no federal money provided to do so. Nor were there any clues
offered as to what constitutes "appropriate action" or "equal participation."
Nor were any penalties specified for violations.
In other words, it was more of an expression of congressional sentiment than a
true prescriptive law.
Nevertheless, a federal judge, Alfredo Marquez, issued a ruling in 2000 that
Arizona was violating the EEOA regarding students in the Nogales school
Although the ruling focused primarily on resource issues, its underpinning was
the poor performance of Nogales students on standardized tests.
And although the judge only looked at the Nogales district, he nevertheless
ordered a statewide remedy. The state would have to choose a method of improving
the education of English learners, determine the cost of that method, and then
provide sufficient state funds to implement it.
This was always a fool's errand. It assumes that there is some magical figure
that, if spent, would make the achievement gap between English-learners and
native speakers disappear. There is no such magical number.
The state never pulled off a credible cost study. Nevertheless, the Legislature
ultimately passed a new English-learner program based upon the immersion
approach mandated by voters in 2000.
A new federal judge, Raner Collins, held that the new program didn't comply with
the initial court decision and started fining the state.
In the meantime, something interesting was happening in Nogales. Student
learning was improving dramatically. English-learners were becoming proficient
and scoring above state averages on the AIMS test.
An appeals court set aside Collins' decision and required him to determine
whether things had changed enough to vacate or amend the original judgment.
Last week, Collins decided that they had not. His reasoning constitutes the most
amazing adventure yet in this legal Neverland.
Since 2000, substantial additional federal, state and local resources have
flowed into Nogales, eliminating most of the resource deficiencies cited in the
According to Collins, however, these additional resources don't count because
they did not flow from the cost-study approach the court ordered in 2000.
Nor does the fact that Nogales students are now doing pretty well. That also
doesn't count, according to Collins, because it didn't happen the way the court
said it should happen.
Let's return to the real world for a moment. English-learners in Nogales are
learning English. As they learn English, they are scoring at or above the state
average on state tests. There is no way logically to say that they are being
denied the chance to "equally participate" in the state's instructional program.
There is, in Nogales today, no violation of the Equal Educational Opportunity
Act, given any reasonable construction of its vague terms.
Nevertheless, according to Collins, the state is still in violation because it
was so in 2000, and it hasn't done what the court said to do in 2000.
Getting the job done a different way doesn't matter, at least legally.
Process is more important than results.
Of course, what has really happened is that the premise of the 2000 decision
- the magical-figure theory - has been disproved.
In fact, the best evidence now points in the opposite direction. The key to
success with English-learners isn't new state programs or resources. It's
detailed attention to what happens in the classroom. It's more of an
instructional challenge than a resources challenge.
If state lawmakers and Tom Horne, superintendent of public instruction, care
about common sense and representative government, they don't have much choice
but again to appeal this decision.
Perhaps somewhere in the judicial system, there will be due deference to
real-world results and the separation of powers.
Reach Robb at firstname.lastname@example.org or (602) 444-8472. His column
appears Sundays, Wednesdays and Fridays. Read his blog at