JANET NAPOLITANO

Attorney General

Lynne C. Adams (011367)

Assistant Attorney General

1275 West Washington

Phoenix, AZ  85007

(602) 542-8331

Attorney for Defendants

 

Timothy M. Hogan (004567)

ARIZONA CENTER FOR LAW

IN THE PUBLIC INTEREST

202 E. McDowell Road, Suite 153

Phoenix, AZ  85004

(602) 258-8850

 

 

United States District Court

District of Arizona

 

 

 


MIRIAM FLORES, individually and as a parent                                              CIV 92-596 TUC ACM

of Miriam Flores, minor child, et al,

 

                                    Plaintiffs,            

 

v.                                                                                                                             CONSENT ORDER

 

THE STATE OF ARIZONA, et al,

                                    Defendants.

 

 


                In order to settle certain issues without need for a trial, the parties to this action, by and through their counsel undersigned, hereby enter into this Consent Order.

 

I.                     LEP DETERMINATION CRITERIA

A.      Pursuant to Arizona Revised Statutes (“A.R.S.”) § 15-756(7), the Superintendent of Public Instruction (the “Superintendent”) is charged with the selection of a list of tests and the setting of test scores to determine whether a child is limited English proficient (“LEP”).  The Superintendent shall carry out this mandate before July 1, 2000.  The test scores adopted by the Superintendent as indicating English language proficiency shall be based on the test vendor’s cut scores for each test included on the list prepared pursuant to ARS § 15-756(7).

B.       After the list of tests has been compiled and the scores determined, the Superintendent shall distribute that information, as well as any additional explanatory materials that the Superintendent deems necessary, to all school districts and charter schools in the state.  The Superintendent shall also designate individuals within the Department of Education (the “Department”) as contacts regarding the tests, in the event school districts or charter schools need further information or assistance.

II.                   PERFORMANCE STANDARDS

A.            Duties of the State Board of Education

The State Board of Education (the “State Board” or the “Board”) shall amend its existing rules regarding bilingual education and English as a Second Language (“ESL”) instruction, or enact new rules, that effectuate the following policies:

1.              After a student is exited from a Lau program, that exited student shall be reassessed in each of the two years following the students’ exit.[1]

2.              The reassessment shall consist of tests of the exited student’s reading and writing skills, math skills, and mastery of academic content areas.

3.              The exited student’s scores on the reassessment tests shall be compared to the scores of other mainstream program students of the same age or grade level within the state to determine whether the student is performing at a satisfactory level.

4.              In reassessing an exited student’s math skills and content area mastery, a school district may use either the regularly administered Arizona Instrument to Measure Standards (the “AIMS Test”) or the Stanford 9 Test.

5.              In reassessing an exited student’s reading and writing skills, a school district may use any of the tests identified by the Superintendent pursuant to A.R.S. § 15-756(7), or it may use any of the tests (if any) identified by the Superintendent pursuant to Section II B, below.

6.              The determination of whether an exited student has performed satisfactorily on the reassessment tests shall be based on the following:

a.        If one of the tests selected by the Superintendent pursuant to A.R.S. § 15-756(7) is used as a reassessment test, a student must score at or above the proficiency score established by the Superintendent for that test.

b.       If the Stanford 9 Test is used as a reassessment test for math skills and content area mastery, a student must score at or above the proficiency score established by the Superintendent for that test in connection with his responsibilities pursuant to A.R.S. § 15-756(7).

c.        If the AIMS test is used as the reassessment test for math skills and content area mastery, a student must meet or exceed the minimum competency standards adopted by the Board pursuant to A.R.S. § 15-203 (the “Board’s Academic Standards”).

d.       If a test selected by the Superintendent pursuant to Section II B of this Order is used as a reassessment test for reading and writing skills, a student must score at or above the proficiency score established by the Superintendent for that test.

7.              Exited students who do not perform satisfactorily on the reassessment tests in the two years following their exit from the Lau program shall, subject to parental consent, be re-enrolled in a Lau program and/or given compensatory instruction aimed at curing the skill or knowledge deficits revealed by the reassessment results.

8.              Compensatory instruction may include individual or small group instruction, extended day classes, summer school and intersession school.

9.              The State Board shall adopt the rules described in this section before December 31, 2000.

B.            Duties of the Superintendent

1.              If, after consultation with the testing company that prepared the test at issue, the Superintendent determines that a test for reading and writing assessment selected by the Superintendent pursuant to A.R.S. § 15-756(7) may also be used for reassessment of exited students, such test may also be used for reassessment of a student.  If such tests are used for reassessment, the test scores used to determine a student’s current English proficiency shall not be lower than the test scores used to initially determine whether the child was LEP.

2.              If, after consultation with the testing company, the Superintendent determines that the tests selected pursuant to A.R.S. § 15-756(7) for reading and writing assessment cannot be used for reassessment of exited students, the Superintendent shall select a list of tests that can be used by school districts and charter schools for reading and writing reassessment of students who have been exited from Lau programs.  The Superintendent shall also determine the acceptable score for each of the selected tests.  An “acceptable score” shall at least be equivalent to the score that would have indicated initially that the student was not LEP.  The Superintendent shall create the reassessment test list, if necessary, and determine the required test scores prior to December 31, 2000. -

III.                 ENGLISH LANGUAGE INSTRUCTION

The State Board shall amend its existing rules regarding bilingual education and ESL instruction, or enact new rules, that require the following:

A.            Daily instruction in English language development.  The English language instruction shall be appropriate to the level of English proficiency and shall include listening and speaking skills, reading and writing skills, and cognitive and academic development in English.

B.             Daily instruction in basic subject areas that is understandable and appropriate to the level of academic achievement of the LEP student, and is in conformity with accepted strategies for teaching LEP students.

C.             The curriculum of all bilingual education and ESL programs shall incorporate the Board’s Academic Standards and shall be comparable in amount, scope, and quality to that provided to English proficient students.

D.            The State Board shall adopt the rules described in this section before December 31, 2000.

IV.                 LEP INDIVIDUAL EDUCATION PLANS

The State Board shall amend its existing rules regarding bilingual education and ESL instruction, or enact new rules, to include the following:

A.            On request of a parent or legal guardian with regard to that parent or legal guardian’s own LEP student, the principal of the student’s school shall require a meeting with the principal or the principal’s designee, the parent or legal guardian, and the classroom teacher to review the student’s progress in achieving proficiency in the English language or in making progress toward the Board’s Academic Standards and to make modifications to the student’s instruction in order to address identified problems.

B.             LEP students who are not progressing toward achieving proficiency of the Board’s Academic Standards, as evidenced by failure to improve scores on tests conducted pursuant to A.R.S. § 15-741(A)(2) and (3), shall be provided additional compensatory instruction to help them achieve those academic standards.

C.             The modifications described in Section IV. A of this Order and the compensatory instruction described in Section IV. B shall be provided in the form of an Individual Education Plan (“IEP”).

D.            IEPs shall also be provided to students (1) whose school has too few LEP students at a given grade level to require maintenance of a regular bilingual education program or ESL program for that grade level, or (2) whose parents or legal guardians withhold consent to place a student in a regular Lau program.

E.             An IEP required by Section IV.D shall be prepared by an IEP team comprised of the school principal or the principal’s designee, one of the student’s academic subject teachers, the student’s Lau program teacher or other certified teacher who has a bilingual education or ESL endorsement, and the parent(s) or legal guardian(s), unless they decide not to participate in the IEP team.  If the parent(s) or legal guardian(s) so desire, the IEP team shall also include one advocate for the student selected by the student’s parent(s) or legal guardian(s) and/or the student.

F.             The IEP team shall determine the scope and/or the type of services the student will need to become proficient in English.  The curriculum of all IEPs required by Section IV.D shall incorporate the academic standards adopted by the Board pursuant to A.R.S. § 15-701 and shall be comparable in amount, scope, and quality to that provided to English proficient students.

G.            Upon request by the Department, a copy of the IEP shall be submitted to the Department, along with a summary of the student’s progress, including academic gain as measured by the AIMS Test, the Stanford 9 Test, or other school assessments for use in the Department’s annual English Acquisition Report to the Legislature.

H.            The IEP is not required to be implemented by a classroom teacher who possesses a basic or standard certificate to teach and a bilingual or ESL endorsement, and may be implemented by any certificated teacher.  In the latter circumstance, however, a teacher who possesses a basic or standard certificate to teach and a bilingual or ESL endorsement shall collaborate with the classroom teacher in the implementation of the IEP, including documentation of periodic reviews of the student’s progress toward English proficiency and content area knowledge, as well as plans to remedy any lack of progress.

I.               The State Board shall adopt the rules in this section before December 31, 2000.

V.                  MONITORING

A.            Duties of the State Board

The State Board of Education shall amend its existing rules regarding bilingual education and other English acquisition programs, or enact new rules, to include the following:

1.        If the monitoring report described in Section V. B of this order indicates that a school district or charter school is not in compliance with state or federal laws regarding ELL students, the district or charter school shall submit a corrective action plan to the Department within sixty days from the date of the report.

2.        The State Board shall adopt the rules described in this section before December 31, 2000.

B.            Duties of the Superintendent

1.        The Superintendent shall direct the Department to monitor each year at least twelve school districts or charter schools from the fifty Arizona school districts or charter schools in this State with the highest number of LEP students.  The Department shall monitor all fifty school districts or charter schools with the highest number of LEP students in the State at least once every four years.

2.        The Superintendent shall direct the Department to monitor each year at least ten school districts or charter schools not included in the fifty described in Section IV.B.1 of this Order.

3.        The Superintendent shall direct the Department to monitor each year at least ten school districts or charter schools that, pursuant to A.R.S. § 15-754, are not required to provide bilingual education programs or ESL programs for a majority of their grade levels.

4.        The school districts and charter schools described in the previous Sections V.B.1, .2, and .3 of this Order shall be chosen in the Department’s sole discretion based upon the Department’s review of reports submitted pursuant to A.R.S. § 15-755.

5.        In addition, the Department shall monitor any school district or charter school if the Department receives a documented, written complaint from any citizen, or a complaint from the United States Department of Education or from the United States Office for Civil Rights, regarding a district’s or charter school’s compliance with state or federal law regarding LEP students.

6.        The monitoring required by this Section V shall be on-site monitoring and shall include classroom observations, curriculum reviews, faculty interviews, student records, and a review of LEP programs.  The Department may use bilingual education or ESL endorsed personnel from other schools to assist with the monitoring.

7.        Based on the results of its monitoring, the Department shall determine whether or not the school district or charter school is complying with state and federal laws regarding LEP students.

8.        The Department shall issue a report on the results of its monitoring within forty-five days after completing the monitoring.

9.        Within sixty days following the issuance of the Department’s report, the district or charter school receiving the report shall prepare and submit to the Department a corrective action plan that sets forth steps that will be taken to correct the deficiencies (if any) noted in the Department’s report.

10.     Within thirty days after its receipt of a district’s or charter school’s corrective action plan, the Department shall review such corrective action plan, and may require changes to the corrective action plan.

11.     After the Department has reviewed a district’s or charter school’s corrective action plan and has made any changes it determines are necessary, the corrective action plan is returned to the district or charter school.

12.     Within thirty days after receiving its corrective action plan back from the Department, the district or charter school shall begin implementing the measures set forth in its corrective action plan.

13.     The Department shall conduct a follow-up evaluation of the district or charter school within one year after the date it issued the changed corrective action plan.

14.     If the Department finds continued non-compliance during the follow-up evaluation, the district or charter school shall be referred to the State Board for a determination, pursuant to A.R.S. § 15-755(D), of non-compliance for purposes of continuing to receive group B weight funds for LEP students, as described in A.R.S. § 15-943.  A district or charter school determined to be non-compliant pursuant to this subsection shall not reduce the amount of funds spent on its LEP programs as a result of its loss of group B weight funds for its LEP students because of its continued non-compliance.

15.     The Department shall monitor all district or charter schools that the State Board has determined, pursuant to A.R.S. § 15-755(D), are non-compliant and are no longer receiving group B weight funds for LEP students to ensure that such districts or charter schools do not reduce the amount of funds spent on their bilingual education programs as the result of its loss of group B weight funds.

16.     The Department begins the monitoring described in this section before July 1, 2000.

 

 

APPROVED AS TO FORM AND CONTENT this ____ day of June, 2000.

 

ARIZONA CENTER FOR LAW                                                                        JANET NAPOLITANO

IN THE PUBLIC INTEREST                                                                               ATTORNEY GENERAL

 

By ________________________                                                                  By ________________________

Timothy M. Hogan                                                                                              Lynn C. Adams, Asst. A.G.

Attorney for the Plaintiffs                                                                                  Attorney for the Defendant

 



[1] Lau v. Nichols, 414 U.S. 563 (1974), requires that school districts provide LEP students with a program of instruction calculated to make them proficient in speaking, understanding, reading, and writing English so that they can achieve the same academic standards required of all students.  Programs that are operated pursuant to the mandate of the Lau case are referred to as “Lau programs.”