US justices ask pointed questions in English case
Capitol Media Services
April 21, 2009


By Howard Fischer
Tucson, Arizona | Published:
Supreme Court justices expressed some skepticism Monday over whether Arizona lawmakers have fulfilled their obligation to help students learn English.
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 youngsters proficient.
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 Antonin Scalia.
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 provides others.
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 language barriers."
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.