State, feds move closer to agreement on English immersion program

The state and federal government are working on the finer points of an agreement to settle a five-year-old complaint alleging the state’s program for teaching English to children who don’t speak the language is discriminatory.

Michael Bradley, chief of staff for the Arizona Department of Education, said the state and federal government agree students should spend less time in English immersion classes as their skills improve, but they disagree on how to determine when to cut back.

Federal education and Justice Department officials want to use testing to determine when fewer hours are necessary and require the state to hire someone to monitor the state’s Structured English Immersion program. But the state wants teachers to decide a student’s progress and when it is time to reduce the amount of instruction, Bradley said.

He said there is also no need to hire a special monitor because state Department of Education has sufficient expertise in English language learning.

The immersion program, which has roughly 85,000 students, or 7 percent of the state’s public school enrollment, requires students to spend four hours a day learning English.

The State Board of Education voted in December to allow schools to cut the hours of instruction in half for second-year students who are improving.

The U.S. Department of Education’s Office of Civil Rights and U.S. Department of Justice have been investigating the program since 2010 after a complaint was filed alleging the required four hours of daily instruction illegally segregated students who don’t speak English and denied them access to the rest of their public-school education.

The federal government can either begin administrative proceedings or file a lawsuit against the state if the two sides can’t reach a settlement. Millions of dollars in federal aid are at stake.

The Board of Education on June 8 met in executive session, a legal secret meeting, to decide how to proceed on the federal complaint.

A summary of the meeting says only that the board directed its attorneys to proceed “as directed in executive session.”

Superintendent of Public Instruction Diane Douglas sits on the board, but she declined to discuss the federal complaint.

Douglas said she finds it acceptable to immerse a student in the language four hours a day as long as the instruction covers other subjects, and she thinks students should be given less time as they progress.

“We have to get them learning English,” Douglas said.

The question of whether four hours a day learning English is legal is also before the 9th U.S. Circuit Court of Appeals, which heard arguments in January.

The court fight is part of the 22-year-old Flores v. Arizona class action in which a Nogales, Ariz., student alleged the state was providing inadequate English Language Learner instruction in violation of federal law.

Judge Raner Collins of U.S. District Court in Tucson ruled in 2000 in Flores’ favor, finding that the state’s funding for ELL students was decided arbitrarily and not related to the actual cost of instruction. He extended his ruling to apply statewide.

The state tried to get out of Collins’ ruling, but he refused, and the case eventually made it to the U.S. Supreme Court, which in June 2009 struck down a 9th U.S. Circuit Court of Appeals ruling that the state improperly funded the English education classes.

The case returned to Collins, who held hearings in late 2010 and early 2011 on the sole issue of the four-hours of instruction.

The judge ruled in favor of the state, saying the program didn’t violate the law, but some children will be left behind in other subjects even as they master English.

Tim Hogan, an attorney with the Center for Law in the Public Interest, which represents Flores, appealed Collins’ ruling to the 9th Circuit.

The United States filed an amicus, or friend of the court, brief in the appeal, arguing that the case should be returned to Collins because his analysis of the issue was insufficient.

Erin Flynn, an assistant U.S. attorney, argued that the amount of instruction time was not only illegal, but the state should be required to help students who leave the program catch up with lost academic time.

“Without both, ELLs cannot achieve ‘equal participation’ in ‘instructional programs’ within a reasonable period of time,” Flynn wrote.

Douglas said the state will never satisfy the federal government.

“Whatever we do, they’re going to be looking over our shoulders, in my opinion, and finding a way to complain about the process we’re using, and they’re not necessarily looking at whether this model is successful,” Douglas said.