9th Circuit dismisses 23-year-old lawsuit on state instruction of English language learners

Saying the state is doing all that is legally required, a federal appellate court on Monday dismissed a 23-year-old lawsuit claiming Arizona does not do enough to ensure all students have an opportunity to learn English.

In a unanimous ruling, the three-judge panel of the 9th U.S. Circuit Court of Appeals rejected arguments that it is not enough for the state to offer special four-hour “immersion” courses for students who are not proficient. They said it is legally irrelevant that students, separated from classmates, are not being kept up on academics.

And the court rebuffed contentions that putting English learners into those separate four-hour courses if they have not become proficient within one year amounts to illegal segregation.

Monday’s ruling, unless overturned, could finally bring an end to the lawsuit first filed in 1992 by parents of students in the Nogales Unified School District – a lawsuit that a federal judge used to impose new requirements on Arizona on how it teaches “English language learners” throughout the state.

Attorney Tim Hogan of the Arizona Center for Law in the Public Interest, who represents the parents, said he believes the appellate judges are wrong in determining the state can allow English learners to fall behind. But he said no decision has been made on an appeal.

Monday’s ruling comes as the state Department of Education is engaged in separate negotiations with federal counterparts to end a separate complaint over that whole four-hour question.

Michael Bradley, chief of staff for schools chief Diane Douglas, said his agency shares the concern about students in those immersion classes falling behind in their academics. He said the agency hopes to reach a deal with the U.S. Department of Education and the federal Office of Civil Rights, who sued the state in 2010, that allows students to be put back in regular classes – or at least have fewer hours of immersion – after the first year of English lessons.

The sticking point, said Bradley, is who determines when that can occur.

Central to both legal actions is the federal Equal Education Opportunity Act.

That law requires states to ensure all students have an opportunity to learn. More to the point, it requires states to take “appropriate action” to help them become proficient in English.

Currently about 7 percent of all students in Arizona schools are classified as not proficient.

In 2000, ruling on that 1992 lawsuit, a federal judge in Tucson found Arizona was not meeting its obligations. But his ruling went beyond Nogales, with the judge saying the entire state was in violation of federal law.

In the wake of the 2000 ruling Arizona, legislators repeatedly tinkered with the funding formula which gives schools extra money to aid those who need extra help in learning English. That included a 2006 law providing additional funding and a requirement for students who are not proficient to spend at least the first year in separate four-hour immersion classes.

In 2009, however, the U.S. Supreme Court ruled that Judge Raner Collins, who had inherited the case, overstepped his authority in rejecting that plan.
The justices said Collins took testimony of how well students were performing in Nogales where the lawsuit originated, and then used that to order Arizona to do more statewide. The high court sent the case back to Collins telling him he cannot mandate more state action unless he gets evidence of statewide violations.

Two years ago, Collins said there were sufficient changes made to end the case. That resulted in challengers seeking 9th Circuit review.

Judge Milan Smith, writing Monday for the unanimous court, said there is no reason to keep the lawsuit alive.

Smith specifically rejected the contention that keeping English learners in separate classes beyond the first year amounts to illegal segregation and amounts to denial of the students’ educational opportunities. That’s based on the argument that having the students doing nothing but learn English for four hours a day means they’re not getting the same academic content as their peers and have no opportunity to recover what they’ve missed.

But the judge said none of that violates federal law.

“It requires only that a state take appropriate action to overcome language barriers without specifying particular actions that a state must take,” Smith wrote. And he said Congress gives state and local educators “substantial latitude” to meet that obligation.

Hogan, however, said Monday’s ruling ignores the fact that a different federal appellate court specifically ruled that if schools choose to provide separate English-language classes to students they must also ensure that students do not fall behind in their academics.

“It’s OK to provide intensive language development if you provide the missed academic content,” he said.

Bradley said that goal is correct. The question in the separate complaint against the state by the federal government is how you get there – and when.

“You can fall behind if you’re not in science class,” he said. “But you’re also going to fall behind if you’re in science class and you don’t speak English.”

Bradley said federal officials agree with that goal.

But he said they want to use testing and an outside monitor to determine when a student no longer needs the immersion classes or at least can spend more time in regular classrooms. Bradley said his agency wants a less-structured way of evaluating each student on an individual basis.