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Major ELL Funding Case Goes to U.S. Supreme Court

For the first time since 1973 when it ruled in Lau v. Nicols, 414 U.S. 563 that students with limited English proficiency have a right to a “meaningful educational opportunity,” the United States Supreme Court will be considering a case involving the provision of services to English Language Learners (“ELLs”). Speaker of Arizona House of Representatives v. Flores, which will be argued later this month, involves enforcement of the federal district court’s order that the State of Arizona reasonably fund programs for teaching English to these students.

In 2000, the federal district court had held that Arizona was violating the federal Equal Educational Opportunity Act (“EEOA”) because the amount of funding it was allocating to school districts for ELL programs had not been determined through any rational process and was ‘arbitrary and capricious.” The EEOA requires states to “take appropriate action to overcome language barriers that impede equal participation by its students in instructional programs.” The court did not question the state’s choice of programming for its language minority students, but it held that the State had failed to follow through with adequate practices, resources and personnel to implement its ELL programs. The court ordered the state to conduct a cost study to determine the appropriate amount.

Although several cost studies were undertaken, the state failed to adopt their recommendations. After years of delay and the issuance of continuing compliance orders by the court, the legislature adopted a new ELL funding formula in 2006. The court concluded, however, that the amount of funding provided by the new law was still in violation of the EEOA because its funding levels have no “rational relationship to the cost of providing an ELL program.”

The petition to the Supreme Court was filed by the Speaker of the Arizona House of Representatives and the President of the state Senate. Interestingly, the Governor and the state Board of Education refused to join in the petition, and have, in fact, joined the plaintiffs in asking the Supreme Court to uphold the lower court’s order. (The Superintendent of Public Instruction joined with the legislative leaders.) One of the procedural issues raised by the case is whether the legislative leaders have standing to defend their funding statute before the U.S. Supreme Court when the “state,” as represented by the Governor, refuses to do so.

The legislative leaders argue that the district court’s 2001 injunction is outdated because ELL funding has substantially increased since that time and the quality and the outcomes of ELL programs in the plaintiff district have considerably improved in recent years. In addition, they claim that passage of the federal No Child Left Behind Act (“NCLB”) provides a regulatory framework for ELL and other programs that should be deemed to govern compliance with the EEOA; in other words, they argue that by meeting NCLB requirements for providing educational opportunities to ELL students, the state has also satisfied its obligations under the EEOA.

Plaintiffs’ response emphasizes that there have not been sufficient changes in fact or law since 2001 to justify the petitioners’ request to vacate the injunction. The state never appealed the original orders, they have failed to comply with repeated compliance directives, and their latest statutory response still does not provide sufficient funding to support adequate ELL programming; in fact, by cutting off almost all funding to students after two years, the new statute, according to plaintiffs, has actually taken a major step backwards.

Plaintiffs further note that the plaintiff district still cannot afford to pay market rates for qualified ELL teachers, and it must resort to using long-term substitutes with emergency certificates. Furthermore, the achievement levels of the district’s ELL students, in terms of test scores and graduation rates are still at unacceptable levels. In regard to the NCLB, plaintiffs argue that there is no basis for inferring that Congress intended that a state’s possession of an approved NCLB plan would somehow automatically establish compliance with EEOA. Had Congress really intended that result, they would have said so.

A large number of briefs amicus curiae were submitted on both sides of the argument. An amicus brief submitted by a group of 21 academics who call themselves the “Education-Policy Scholars” in support of the legislative leaders, contends that the lower court orders in this case continue “a disturbing trend that reinforces bad education policy through court-ordered funding remedies…. [and that] the dominant approach to education policy focuses on the outcomes of school administration” rather than on inputs like resources. This brief argues that the remedy the federal district court ordered in this case “like most court-ordered funding remedies --- is destined to fail.”

This brief largely rests on the controversial research of Eric Hanushek and Alfred Lindseth, which alleges that judicial orders in the state court fiscal equity and educational adequacy cases calling for increased school funding have not resulted in significant gains in student performance. They claim that channeling more money into schools will have the “perverse result” of eliminating schools’ motivation to address structural problems.

In response to this brief, another group of 23 academics who support of the plaintiffs’ position, and call themselves the “Education Policy and Finance Scholars,” submitted an amicus brief that strongly disputes the claim that the brief in support of the legislative leaders represents the “consensus view of education policy experts.” They contend that that “An overwhelming body of research illustrates that adequate funding is necessary to student achievement and that increasing funding improves student performance.”

The amicus brief in support of the plaintiffs states that the brief in support of the legislative leaders relies largely on publications by Eric Hanushek, whose opinions have been sharply criticized by many scholars and many courts. The brief concludes that “although funding alone will not guarantee students’ success, inadequate funding ensures their failure.”