JANET NAPOLITANO
Attorney General
Lynne C. Adams (011367)
Assistant Attorney General
1275
(602) 542-8331
Attorney for Defendants
Timothy M. Hogan (004567)
IN THE PUBLIC INTEREST
(602) 258-8850
District of Arizona
MIRIAM
FLORES, individually and as a parent CIV
92-596 TUC ACM
of
Miriam Flores, minor child, et al,
Plaintiffs,
v. CONSENT
ORDER
THE
STATE OF
Defendants.
In order to settle certain issues without need for a
trial, the parties to this action, by and through their counsel undersigned,
hereby enter into this Consent Order.
I. LEP DETERMINATION CRITERIA
A.
Pursuant to
Arizona Revised Statutes (“A.R.S.”) § 15-756(7), the Superintendent of Public
Instruction (the “Superintendent”) is charged with the selection of a list of
tests and the setting of test scores to determine whether a child is limited
English proficient (“LEP”). The
Superintendent shall carry out this mandate before July 1, 2000. The test scores adopted by the Superintendent
as indicating English language proficiency shall be based on the test vendor’s
cut scores for each test included on the list prepared pursuant to ARS §
15-756(7).
B.
After the list of
tests has been compiled and the scores determined, the Superintendent shall
distribute that information, as well as any additional explanatory materials
that the Superintendent deems necessary, to all school districts and charter
schools in the state. The Superintendent
shall also designate individuals within the Department of Education (the
“Department”) as contacts regarding the tests, in the event school districts or
charter schools need further information or assistance.
II. PERFORMANCE STANDARDS
A.
Duties
of the State Board of Education
The State Board of Education (the “State Board” or the “Board”) shall amend its existing rules regarding bilingual education and English as a Second Language (“ESL”) instruction, or enact new rules, that effectuate the following policies:
1.
After a student
is exited from a Lau program, that
exited student shall be reassessed in each of the two years following the
students’ exit.[1]
2.
The reassessment
shall consist of tests of the exited student’s reading and writing skills, math
skills, and mastery of academic content areas.
3.
The exited
student’s scores on the reassessment tests shall be compared to the scores of
other mainstream program students of the same age or grade level within the
state to determine whether the student is performing at a satisfactory level.
4.
In reassessing an
exited student’s math skills and content area mastery, a school district may
use either the regularly administered Arizona Instrument to Measure Standards (the
“AIMS Test”) or the Stanford 9 Test.
5.
In reassessing an
exited student’s reading and writing skills, a school district may use any of
the tests identified by the Superintendent pursuant to A.R.S. § 15-756(7), or
it may use any of the tests (if any) identified by the Superintendent pursuant
to Section II B, below.
6.
The determination
of whether an exited student has performed satisfactorily on the reassessment
tests shall be based on the following:
a.
If one of the
tests selected by the Superintendent pursuant to A.R.S. § 15-756(7) is used as
a reassessment test, a student must score at or above the proficiency score
established by the Superintendent for that test.
b.
If the Stanford 9
Test is used as a reassessment test for math skills and content area mastery, a
student must score at or above the proficiency score established by the
Superintendent for that test in connection with his responsibilities pursuant
to A.R.S. § 15-756(7).
c.
If the AIMS test
is used as the reassessment test for math skills and content area mastery, a
student must meet or exceed the minimum competency standards adopted by the
Board pursuant to A.R.S. § 15-203 (the “Board’s Academic Standards”).
d.
If a test
selected by the Superintendent pursuant to Section II B of this Order is used
as a reassessment test for reading and writing skills, a student must score at
or above the proficiency score established by the Superintendent for that test.
7.
Exited students
who do not perform satisfactorily on the reassessment tests in the two years
following their exit from the Lau
program shall, subject to parental consent, be re-enrolled in a Lau program and/or given compensatory
instruction aimed at curing the skill or knowledge deficits revealed by the
reassessment results.
8.
Compensatory
instruction may include individual or small group instruction, extended day
classes, summer school and intersession school.
9.
The State Board
shall adopt the rules described in this section before December 31, 2000.
B.
Duties
of the Superintendent
1.
If, after
consultation with the testing company that prepared the test at issue, the
Superintendent determines that a test for reading and writing assessment
selected by the Superintendent pursuant to A.R.S. § 15-756(7) may also be used
for reassessment of exited students, such test may also be used for
reassessment of a student. If such tests
are used for reassessment, the test scores used to determine a student’s
current English proficiency shall not be lower than the test scores used to
initially determine whether the child was LEP.
2.
If, after
consultation with the testing company, the Superintendent determines that the
tests selected pursuant to A.R.S. § 15-756(7) for reading and writing
assessment cannot be used for reassessment of exited students, the
Superintendent shall select a list of tests that can be used by school
districts and charter schools for reading and writing reassessment of students
who have been exited from Lau
programs. The Superintendent shall also
determine the acceptable score for each of the selected tests. An “acceptable score” shall at least be
equivalent to the score that would have indicated initially that the student
was not LEP. The Superintendent shall
create the reassessment test list, if necessary, and determine the required
test scores prior to December 31, 2000. -
III. ENGLISH LANGUAGE INSTRUCTION
The
State Board shall amend its existing rules regarding bilingual education and
ESL instruction, or enact new rules, that require the following:
A.
Daily instruction
in English language development. The
English language instruction shall be appropriate to the level of English
proficiency and shall include listening and speaking skills, reading and
writing skills, and cognitive and academic development in English.
B.
Daily instruction
in basic subject areas that is understandable and appropriate to the level of
academic achievement of the LEP student, and is in conformity with accepted
strategies for teaching LEP students.
C.
The curriculum of
all bilingual education and ESL programs shall incorporate the Board’s Academic
Standards and shall be comparable in amount, scope, and quality to that
provided to English proficient students.
D.
The State Board
shall adopt the rules described in this section before December 31, 2000.
IV.
LEP INDIVIDUAL EDUCATION PLANS
The
State Board shall amend its existing rules regarding bilingual education and
ESL instruction, or enact new rules, to include the following:
A.
On request of a
parent or legal guardian with regard to that parent or legal guardian’s own LEP
student, the principal of the student’s school shall require a meeting with the
principal or the principal’s designee, the parent or legal guardian, and the
classroom teacher to review the student’s progress in achieving proficiency in
the English language or in making progress toward the Board’s Academic
Standards and to make modifications to the student’s instruction in order to
address identified problems.
B.
LEP students who
are not progressing toward achieving proficiency of the Board’s Academic
Standards, as evidenced by failure to improve scores on tests conducted
pursuant to A.R.S. § 15-741(A)(2) and (3), shall be provided additional
compensatory instruction to help them achieve those academic standards.
C.
The modifications
described in Section IV. A of this Order and the compensatory instruction
described in Section IV. B shall be provided in the form of an Individual
Education Plan (“IEP”).
D.
IEPs shall also
be provided to students (1) whose school has too few LEP students at a given
grade level to require maintenance of a regular bilingual education program or
ESL program for that grade level, or (2) whose parents or legal guardians
withhold consent to place a student in a regular Lau program.
E.
An IEP required
by Section IV.D shall be prepared by an IEP team comprised of the school
principal or the principal’s designee, one of the student’s academic subject
teachers, the student’s Lau program
teacher or other certified teacher who has a bilingual education or ESL
endorsement, and the parent(s) or legal guardian(s), unless they decide not to
participate in the IEP team. If the
parent(s) or legal guardian(s) so desire, the IEP team shall also include one
advocate for the student selected by the student’s parent(s) or legal
guardian(s) and/or the student.
F.
The IEP team
shall determine the scope and/or the type of services the student will need to
become proficient in English. The
curriculum of all IEPs required by Section IV.D shall incorporate the academic
standards adopted by the Board pursuant to A.R.S. § 15-701 and shall be
comparable in amount, scope, and quality to that provided to English proficient
students.
G.
Upon request by
the Department, a copy of the IEP shall be submitted to the Department, along
with a summary of the student’s progress, including academic gain as measured
by the AIMS Test, the Stanford 9 Test, or other school assessments for use in
the Department’s annual English Acquisition Report to the Legislature.
H.
The IEP is not
required to be implemented by a classroom teacher who possesses a basic or
standard certificate to teach and a bilingual or ESL endorsement, and may be
implemented by any certificated teacher.
In the latter circumstance, however, a teacher who possesses a basic or
standard certificate to teach and a bilingual or ESL endorsement shall
collaborate with the classroom teacher in the implementation of the IEP,
including documentation of periodic reviews of the student’s progress toward
English proficiency and content area knowledge, as well as plans to remedy any
lack of progress.
I.
The State Board
shall adopt the rules in this section before December 31, 2000.
V. MONITORING
A.
Duties
of the State Board
The
State Board of Education shall amend its existing rules regarding bilingual
education and other English acquisition programs, or enact new rules, to
include the following:
1.
If the monitoring
report described in Section V. B of this order indicates that a school district
or charter school is not in compliance with state or federal laws regarding ELL
students, the district or charter school shall submit a corrective action plan
to the Department within sixty days from the date of the report.
2.
The State Board
shall adopt the rules described in this section before December 31, 2000.
B. Duties of the Superintendent
1.
The
Superintendent shall direct the Department to monitor each year at least twelve
school districts or charter schools from the fifty Arizona school districts or
charter schools in this State with the highest number of LEP students. The Department shall monitor all fifty school
districts or charter schools with the highest number of LEP students in the
State at least once every four years.
2.
The
Superintendent shall direct the Department to monitor each year at least ten
school districts or charter schools not included in the fifty described in
Section IV.B.1 of this Order.
3.
The
Superintendent shall direct the Department to monitor each year at least ten
school districts or charter schools that, pursuant to A.R.S. § 15-754, are not
required to provide bilingual education programs or ESL programs for a majority
of their grade levels.
4.
The school
districts and charter schools described in the previous Sections V.B.1, .2, and
.3 of this Order shall be chosen in the Department’s sole discretion based upon
the Department’s review of reports submitted pursuant to A.R.S. § 15-755.
5.
In addition, the
Department shall monitor any school district or charter school if the
Department receives a documented, written complaint from any citizen, or a
complaint from the United States Department of Education or from the United
States Office for Civil Rights, regarding a district’s or charter school’s
compliance with state or federal law regarding LEP students.
6.
The monitoring
required by this Section V shall be on-site monitoring and shall include
classroom observations, curriculum reviews, faculty interviews, student
records, and a review of LEP programs.
The Department may use bilingual education or ESL endorsed personnel
from other schools to assist with the monitoring.
7.
Based on the
results of its monitoring, the Department shall determine whether or not the
school district or charter school is complying with state and federal laws
regarding LEP students.
8.
The Department
shall issue a report on the results of its monitoring within forty-five days
after completing the monitoring.
9.
Within sixty days
following the issuance of the Department’s report, the district or charter
school receiving the report shall prepare and submit to the Department a
corrective action plan that sets forth steps that will be taken to correct the
deficiencies (if any) noted in the Department’s report.
10.
Within thirty
days after its receipt of a district’s or charter school’s corrective action
plan, the Department shall review such corrective action plan, and may require
changes to the corrective action plan.
11.
After the
Department has reviewed a district’s or charter school’s corrective action plan
and has made any changes it determines are necessary, the corrective action
plan is returned to the district or charter school.
12.
Within thirty
days after receiving its corrective action plan back from the Department, the
district or charter school shall begin implementing the measures set forth in
its corrective action plan.
13.
The Department
shall conduct a follow-up evaluation of the district or charter school within
one year after the date it issued the changed corrective action plan.
14.
If the Department
finds continued non-compliance during the follow-up evaluation, the district or
charter school shall be referred to the State Board for a determination,
pursuant to A.R.S. § 15-755(D), of non-compliance for purposes of continuing to
receive group B weight funds for LEP students, as described in A.R.S. §
15-943. A district or charter school
determined to be non-compliant pursuant to this subsection shall not reduce the
amount of funds spent on its LEP programs as a result of its loss of group B
weight funds for its LEP students because of its continued non-compliance.
15.
The Department
shall monitor all district or charter schools that the State Board has
determined, pursuant to A.R.S. § 15-755(D), are non-compliant and are no longer
receiving group B weight funds for LEP students to ensure that such districts
or charter schools do not reduce the amount of funds spent on their bilingual
education programs as the result of its loss of group B weight funds.
16.
The Department
begins the monitoring described in this section before July 1, 2000.
APPROVED AS TO FORM AND
CONTENT this ____ day of June, 2000.
IN THE PUBLIC INTEREST ATTORNEY
GENERAL
By ________________________ By ________________________
Timothy M. Hogan Lynn
C. Adams, Asst. A.G.
Attorney for the Plaintiffs Attorney
for the Defendant