June 26, 2009
Dear Colleagues,
I have good news to report regarding a major civil rights policy priority for the Alliance and the children we serve, ensuring the continuing vitality of the Equal Educational Opportunities Act of 1974 (EEOA).
Yesterday, the U.S. Supreme Court handed down a 5-4 decision in the case of Horne v. Flores, a 17-year old Arizona civil rights case brought under the EEOA.
The Court’s decision consists of the majority opinion, authored by Justice Alito, and a longer dissenting opinion authored (and delivered orally from the bench) by Justice Breyer representing the Court’s “liberal” Justices. The Court’s decision sends the case back through the Ninth Circuit Court of Appeals to the District Court for new hearings on whether Arizona, and the school district of Nogales are taking appropriate action to overcome language barriers which impede the equal educational participation and progress of language-minority students.
The highly technical Horne decision was overshadowed by another Arizona school decision handed down by the Court yesterday, Safford Unified School District v. Redding, holding unconstitutional the strip search of a 13 year-old student suspected of having given ibuprophen to a fellow student. The Redding decision was 8-1, with only Justice Thomas finding the school’s actions constitutional.
WHY THE HORNE DECISION IS GOOD NEWS
The Court’s decision in Horne upholds the EEOA and its mandate that schools must take “appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” The Court rejected the state’s argument that the No Child Left Behind (NCLB) Act supersedes the EEOA in setting standards for what constitutes equal educational opportunity.
The Supreme Court’s decision in Horne effectively expands the focus of the case from the relatively narrow issue of school finance to educational program outcomes and effectiveness, which, of course, is all that matters in the life of a child, any child, every child.
When the case is retried by the Federal district court, the effectiveness of Arizona’s “unique” one-year program of 4 - hours per school day of “Structured English Immersion” (SEI) will be on trial. It is a trial that we can look forward to and must prepare for.
Much about the Arizona SEI approach is already known. It has not closed the daunting achievement gap that divides Arizona students by race and language. Look, example, at last year’s 4th grade science test scores.
Science, of course, is just one program, and the scores presented below are derived from a single test. Nevertheless, six times as many white students passed the AZ test of science achievement as did limited-English-proficient students. Even more stunning is the fact that while 31 percent of White students exceeded state standards, only 1 percent of LEP students did so.
In addition to English language and content area student test scores, the trial court will examine data on broader measures of school success and failure including data on attendance, graduation, postsecondary enrollment and college completion and other outcome measures rehears the case. The trial court will also examine both the quantity and quality of resources provided by the State and the Nogales school district in terms of teachers, texts, parental involvement, and other instructional features and components.
Later this year or in 2010, the federal district court will rehear Miriam Flores’ complaint. Not since the Supreme Court’s landmark 1974 decision in Lau v. Nichols have the legal questions been as direct and blunt: does Arizona’s SEI program enable limited-English-proficient national origin minority students to meet state performance standards, and does Nogales’ SEI program ensure LEP students equal educational participation and achievement.
Going forward, AMME will work with the Flores parties in the pursuit of justice. We also look forward to working with President Obama and the United States Congress on the reauthorization of the Elementary and Secondary Education Act -- to reform, strengthen, and improve the education of language-minority students, and in the process, the standards and quality of language education for all students.
If you have any questions, please do not hesitate to contact me.
James J. (Jim) Lyons, Esq.
Legislative and Policy Counsel AMME
jamesjohnlyons@comcast.net
302 381-0755
2600 Crystal Drive
Suite 1319
Arlington, VA 22202
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