Flores v. Huppenthal et. al
On March 29, 2013, district court judge Raner Collins vacated the judgment in the twenty year-old case which challenged the state's denial of equal educational access to a large percentage of Arizona's schoolchildren. The Center has appealed the disappointing ruling to the Ninth Circuit Court of Appeals.
Flores was filed in 1992 on behalf of a class of parents and children in the Nogales Unified School District generally alleging the state was inadequately funding programs and services for ELLs. After a trial in 1999, judgment was entered against the state in 2000. Between 2000 and 2008, the Center returned to federal court numerous times because the state continually failed to comply with court orders to provide adequate funding for ELL programs.
After U.S. District Court Judge Raner Collins imposed fines against the state for failing to comply with the judgment, the Superintendent of Public Instruction and the President and Speaker of the legislature appealed the ruling to the Ninth Circuit Court of Appeals and then the U.S. Supreme Court. In June 2009, the U.S. Supreme Court decided in a 5-4 decision that the state had no independent obligation under the EEOA to provide adequate funding for ELL programs. According to the majority, the only federal issue is whether school districts have sufficient total resources to adequately fund ELL programs. The case was remanded to the U.S. District Court for a determination of whether the Nogales Unified School District had programs in place that complied with the EEOA. The U.S. Supreme Court added that Arizona should be relieved from compliance with the judgment unless it could be shown that the state itself was violating the EEOA.
On remand, the Center argued that Arizona continues to violate the EEOA because it requires school districts to segregate ELLs for four hours of English instruction every school day until they are deemed proficient, which typically takes several years. The students are required to receive four hours of English instruction regardless of their level of proficiency, and no effort is made to ensure that they recover the academic content they miss as a result of the focus on language acquisition. As a result of this four hour mandate, ELLs are denied equal access to the academic curriculum and other educational opportunities.
During the most recent evidentiary hearing in this case, which began in federal court in Tucson in the fall of 2010 and continued until the spring of 2011, Defendants Tom Horne and the President and Speaker of the legislature defended the four hour segregation requirement. They argued that four hours of language instruction every day would allow ELL students to acquire English faster. But, there is no evidence to back up their claim. Rather, the evidence demonstrated that students who are in the four hour model are not acquiring English at an appreciably faster rate than they did when they had ELL class for only one or two hours per day. Moreover, the Center presented evidence that it takes about three years for ELL students to become English proficient. While it might be defensible to deny students access to academic courses for one year, there is no rational to justify excluding ELLs from a basic education for three years. That's a deficit that ELLs are never able to overcome, and because it prevents these students from obtaining the courses necessary for graduation, it leads to high drop-out rates among high school ELL students.
Despite the overwhelming evidence that ELLs are being denied equal educational opportunites as a direct result of the state's mandated four hour model, Judge Collins held that the plaintiffs had failed to prove a statewide violation of the EEOA. In reaching this conclusion, the judge stated, "[i]t appears that the state has made a choice in how it wants to spend funds on teaching students the English language. It may turn out to be pennywise and pound foolish, as at the end of the day, speaking English, and not having other educational gains in science, math, etc. will still leave some children behind. However this lawsuit is no longer the vehicle to pursue the myriad of educational issues in this state." Because we believe that the state's policy is not only "penny wise and pound foolish" but unlawful as well, the Center appealed the decision to the Ninth Circuit Court of Appeals, which affirmed the ruling in June 2015. We have since filed a Petition for Rehearing and Rehearing En Banc because the Opinion conflicts with the plain language of the EEOA and longstanding precedent on the requirements of the EEOA regarding English Language Learners. Unfortunately, the Petition was denied.