A legal leap into Neverland
Arizona Republic
Mar. 28, 2007

Latest English-learner ruling defies logic, translation

Robert Robb

The most recent decision in Arizona's English-learner lawsuit is another adventure in a legal Neverland.

The adventure began with a federal law: the Equal Educational Opportunities Act. That act requires a state educational agency "to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs."

Now, there was no federal money provided to do so. Nor were there any clues offered as to what constitutes "appropriate action" or "equal participation." Nor were any penalties specified for violations.

In other words, it was more of an expression of congressional sentiment than a true prescriptive law.

Nevertheless, a federal judge, Alfredo Marquez, issued a ruling in 2000 that Arizona was violating the EEOA regarding students in the Nogales school district.

Although the ruling focused primarily on resource issues, its underpinning was the poor performance of Nogales students on standardized tests.

And although the judge only looked at the Nogales district, he nevertheless ordered a statewide remedy. The state would have to choose a method of improving the education of English learners, determine the cost of that method, and then provide sufficient state funds to implement it.

This was always a fool's errand. It assumes that there is some magical figure that, if spent, would make the achievement gap between English-learners and native speakers disappear. There is no such magical number.

The state never pulled off a credible cost study. Nevertheless, the Legislature ultimately passed a new English-learner program based upon the immersion approach mandated by voters in 2000.

A new federal judge, Raner Collins, held that the new program didn't comply with the initial court decision and started fining the state.

In the meantime, something interesting was happening in Nogales. Student learning was improving dramatically. English-learners were becoming proficient and scoring above state averages on the AIMS test.

An appeals court set aside Collins' decision and required him to determine whether things had changed enough to vacate or amend the original judgment.

Last week, Collins decided that they had not. His reasoning constitutes the most amazing adventure yet in this legal Neverland.

Since 2000, substantial additional federal, state and local resources have flowed into Nogales, eliminating most of the resource deficiencies cited in the 2000 ruling.

According to Collins, however, these additional resources don't count because they did not flow from the cost-study approach the court ordered in 2000.

Nor does the fact that Nogales students are now doing pretty well. That also doesn't count, according to Collins, because it didn't happen the way the court said it should happen.

Let's return to the real world for a moment. English-learners in Nogales are learning English. As they learn English, they are scoring at or above the state average on state tests. There is no way logically to say that they are being denied the chance to "equally participate" in the state's instructional program. There is, in Nogales today, no violation of the Equal Educational Opportunity Act, given any reasonable construction of its vague terms.

Nevertheless, according to Collins, the state is still in violation because it was so in 2000, and it hasn't done what the court said to do in 2000.
Getting the job done a different way doesn't matter, at least legally.
Process is more important than results.

Of course, what has really happened is that the premise of the 2000 decision
- the magical-figure theory - has been disproved.

In fact, the best evidence now points in the opposite direction. The key to success with English-learners isn't new state programs or resources. It's detailed attention to what happens in the classroom. It's more of an instructional challenge than a resources challenge.

If state lawmakers and Tom Horne, superintendent of public instruction, care about common sense and representative government, they don't have much choice but again to appeal this decision.

Perhaps somewhere in the judicial system, there will be due deference to real-world results and the separation of powers.

Reach Robb at robert.robb@arizonarepublic.com or (602) 444-8472. His column
appears Sundays, Wednesdays and Fridays. Read his blog at