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Supreme Court sends ELL case to lower courts

The United States Supreme Court has struck down a lower court’s ruling that Arizona has failed to comply with federal education law by improperly funding English education classes.

The narrow 5-4 decision on June 25 was hailed as a victory by the Republican lawmakers who pushed for the appeal, but it doesn’t mean the case is over.

Far from it, in fact, as the Flores v. State of Arizona lawsuit was sent back to a lower court for further review to determine whether the state was complying with federal education laws and providing enough money for English education classes for public school students who speak a different primary language. The lawsuit was originally filed in 1992.

Justice Samuel Alito, in the court’s opinion, wrote that a district court and the 9th Circuit Court of Appeals had applied too strict a standard on the appeal by Superintendent of Public Instruction Tom Horne.

In doing so, the lower courts focused only on increases in funding to the English instruction classes, not on changes to the overall landscape of education spending in Arizona.

“(B)y requiring (the state) to demonstrate ‘appropriate action’ through a particular funding mechanism, the Court of Appeals improperly substituted its own educational and budgetary policy judgments for those of the state and local officials to whom such decisions are properly entrusted,” Alito wrote. “Funding is merely one tool that may be employed to achieve the statutory objective.”

Horne described the ruling as a vindication for his strategy for educating English language learners, and said it was a “major blow” to the plaintiffs.

“The U.S. Supreme Court has taken a major step to stop federal district judges from micromanaging the state’s education systems. We the people should rule ourselves through our elected representatives and should not be ruled by an aristocracy of lifetime federal judges,” Horne stated in a press release.

The issue, according to Horne, is not financing, but whether Arizona is taking adequate steps to teach students English. He said a program implemented two years ago that provides four hours a day of intensive English instruction has more than doubled the percentage of students reclassified as English proficient.

Sen. John Huppenthal, a Chandler Republican, called the ruling “phenomenal.”

“We’re showing spectacular success. The economic gains associated with the program are literally twice as high as the academic gains that those students were seeing previously,” said Huppenthal, who has filed an exploratory committee to run for superintendant in 2010. “I think if you design something that works well it’s almost obvious that the court, if the court’s rational, that it will support that technique.”

Gov. Jan Brewer congratulated Horne on the ruling, which she characterized as a victory for states’ rights and Arizona’s ELL program. A recent Department of Education report, she said, reflects progress by the ELL program and shows that the number of students who have gained English proficiency has increased to nearly 40,000.

Rep. Tom Boone, a Peoria Republican, was one of the chief legislative critics of a 2000 consent decree in which the state agreed to improve ELL funding statewide, not just in Nogales, where the lawsuit had originated. He said the decision shows that the policies dealing with ELL instruction are the purview of the Legislature, not the judiciary. “I think that’s a huge decision,” he said.

Others were far less jubilant over the ruling. John Wright, president of the Arizona Education Association, said the decision was disappointing but not surprising, given the political makeup of the U.S. Supreme Court. Public interest attorney Tim Hogan, who has represented the plaintiffs, will continue pushing for changes in the program when the case goes back to a lower court, Wright said.

“What we’re really working on is what goes on in the classroom, and that’s where the Department of Education ought to be paying attention. Right now we have instructional programs being dictated by legislators rather than by educators, and that’s just an absurd turn of events. It’s really time to take this out of politics and out of court, and to let teachers make the best decisions for their students,” Wright said.

Rep. David Lujan, a Phoenix Democrat, said the continuation of the case in a lower court will give Hogan an opportunity to examine whether the ELL program has really worked as well during the past two year as its supporters claim.

“It just means that we’ll be in the courts for a little while longer. But I certainly don’t think it means that it’s the end of the discussion on this issue,” Lujan said. “I think when Tim Hogan goes back to court he will be able to show evidence that current models are not working. I still think that the district court is going to come back and say that we’re not fulfilling our obligations to ELL students in Arizona.”

Justice Stephen Breyer, who wrote the 12-page dissenting opinion, said the district court appeared to act cautiously in an attempt to avoid doing what Alito concluded it did.

“The District Court’s…efforts to provide state officials wide discretionary authority (about the level of funding and the kind of funding plan) show considerable sensitivity to ‘federalism concerns.’ And given the many years (at least seven) of state non-compliance, it is difficult to see how the decree can have remained in place too long,” he wrote.

Breyer also warned that the June 25 ruling, which said the lower courts should have been more flexible in their consideration of the type of appeal in this case, could have disastrous consequences. He wrote that it “applies a new set of new rules that are not faithful to our cases” and which “create the dangerous possibility” that orders and judgments settled years ago will be challenged.

Hogan said he was disappointed in the ruling, but was pleased the Supreme Court didn’t end the case completely.

“I think we’ll be able to show that what the state has in place is failing kids,” he said.

House Speaker Kirk Adams called the ruling “a breath of fresh air.”

“Today’s decision will help move past gridlock in the court room, to success in the classroom,” he stated in a press release. “That’s good news for students and good news for Arizona. Now we need to roll up our sleeves and get on with it and teach these children English.”

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