ask pointed questions in English case
Capitol Media Services
April 21, 2009
By Howard Fischer
CAPITOL MEDIA SERVICES
Tucson, Arizona | Published:
Supreme Court justices expressed some skepticism Monday over whether
Arizona lawmakers have fulfilled their obligation to help students
Justice Stephen Breyer questioned the assertion by Kenneth Starr,
who represents state legislators, that the situation has changed
since a federal judge ruled in 2000 that the state was not complying
with the federal Equal Education Opportunity Act. The law requires
states to "take appropriate action to overcome language barriers
that impede equal participation by its students in its instructional
programs," according to a transcript of the hearing.
Among those changes, Starr argued, was approval of a new funding
plan in 2006.
But Breyer recited statistics showing Arizona students with limited
English proficiency are doing far worse in tests of reading and even
math than other youngsters. And the justice also noted that the
state's current extra funding for students classified as "English
language learners" is less than $400 per student per year despite
some studies showing it actually takes far more than that to make
Starr said all of that is legally irrelevant.
At a basic level, Starr said, the original lawsuit dealt only with
the problems of students in the Nogales Unified School District who
were not proficient in English. Starr said there is evidence
students there are doing better.
In addition, "a sea change occurred in education policy" in Arizona
since the original 2000 ruling, with the old system of bilingual
education replaced with "structured English immersion."
Breyer, however, wasn't buying the argument that things are better
in Nogales. He said English learners in that district fail certain
standardized tests at a much higher rate than other youngsters.
"Now, I'm sure that progress has been made," Breyer said. "But it
doesn't seem to me, looking at that kind of thing — and the record
is filled with that kind of thing — that you could say that the
objectives were achieved."
Starr responded the court should consider a different test, saying
this one shouldn't be taken "too seriously."
Then there is the question of why a problem in Nogales should force
lawmakers to provide more money to schools throughout the state.
"I find it bizarre that we are sitting here talking about what the
whole state has to do on the basis of one district, which is
concededly the district that has the most non-native-English
speakers and has been a problem district all along," said Justice
But attorney Sri Srinivasan, arguing before the high court on behalf
of the parents who first filed the 1992 lawsuit, said it was the
Attorney General's Office that, in essence, agreed whatever solution
is appropriate for Nogales should be applied to English learners
throughout the state. Srinivasan said that is based on state
constitutional requirements for equal funding, meaning Arizona can't
give one district more money to help students learn English than it
Chief Justice John Roberts suggested there was something unorthodox,
if not improper, about the attorney general's agreeing to have the
judgment against Nogales assessed against the entire state.
"It's hard for the attorney general to get funding from the
Legislature for all he wants to do," Roberts said. "This is a way
for him to get it, to go to the Legislature and say, 'Look, you
don't have a choice.'"
One central question the Supreme Court will have to decide is
exactly what the federal educational-opportunity law requires
Arizona to do.
"All that is required . . . is, in fact, good-faith efforts towards
compliance," Starr argued. But Srinivasan said the law "requires
efforts that are, in fact, reasonably calculated to overcome
Everything else aside, Justice David Souter said one thing is
working against the argument by legislators that they have now done
enough, at least in part because of the 2006 law boosting funding.
Souter pointed out that a trial judge ruled and an appellate court
agreed that, whatever the merits of the 2006 law, two of the
provisions were illegal.
One limits extra funding for each English learner to no more than
two years. The other requires school districts to first use other
federal funds to help teach English before being eligible for the
additional state aid.
Starr responded by saying Arizona is in compliance with the 2002
federal No Child Left Behind law, which he said essentially replaces
any requirements of the earlier educational-opportunity law.
But Justice John Paul Stevens noted that the Attorney General's
Office, which officially represents both the state and the state
Board of Education, agrees the two provisions have to be changed to
make the 2006 law legal.
There was no indication when a ruling might be made.