Arizona Program for English Learners Upheld

(CN) - An Arizona school district that forces English learners to undergo four hours a day of language instruction does not violate federal law, the Ninth Circuit ruled Monday.

The ruling came as a blow to Tim Hogan, a civil rights attorney with the Arizona Center for Law in the Public Interest who has fought the border town of Nogales, Ariz., over these requirements for 23 years.

"I think they got it wrong," Hogan said.

For Hogan, the Ninth Circuit flouted the the Fifth Circuit's 1981 decision, Castaneda v. Pickard, in finding that Arizona has no need to ensure that students who take four hours of separate English language instruction get to make up what they missed academically.

"Arizona has adopted sequential learning - that you learn English first then academic content," Hogan said. "Castaneda made it clear that you had to provide the academic content that the students were missing as a result of being in intensive language development."

When the case began in 1992, lead plaintiff Miriam Flores claimed that the Arizona Department of Education was not providing students like her daughter, also named Miriam, in the Nogales Unified School District with adequate English language instruction.

Eight years of legal wrangling ultimately led U.S. District Judge Raner Collins to order that Arizona end its "arbitrary and capricious spending" on statewide English-language-learner programs.

This ruling set off another eight years of the plaintiffs trying to have Arizona comply with the court's order for more funding.

Though the U.S. Supreme Court ruled in 2009 that the state had no obligation under the Equal Educational Opportunities Act to fund English-language-learner programs, the five-justice majority remanded for the trial court to examine four factual and legal factors: Arizona's adoption of new ELL instruction methods, Congress' enactment of No Child Left Behind, reforms in Nogales itself and the increase in education funding over the years.

Though Collins found in 2013 that the separate instruction model did not violate students' civil rights, the Arizona Center claimed on appeal that the "segregation" of English language learners for more than a year violates the EEOA's requirement that students have equal participation in the school curriculum.

A three-judge panel with the Ninth Circuit affirmed Monday that Collins made the right call, noting the substantial changes that Nogales has made to the implementation of its English language learning programs.

"We conclude that the district court carefully followed the Supreme Court's instruction on remand, and did not abuse its discretion determining that in light of the changed circumstances in Nogales and the state over the course of more than a decade Rule 60(b)(5) relief was warranted," Judge Milan Smith Jr. wrote for the court.

Judges J. Clifford Wallace and Michelle Friedland concurred in the decision, which says that Flores and the other plaintiffs, representing only a class of Nogales students and their parents, couldn't show that Arizona is violating the EEOA statewide or prove injury sufficient to merit a statewide injunction.

Particularly, the plaintiffs couldn't show that the four-hour intensive instruction model was being used throughout the state.

"The record is replete with evidence that underscores the extent to which implementation of this model - and more specifically, the academic content that ELL students receive - varies from district to district," Smith wrote.

Hogan questioned this finding.

"That didn't make any sense to me," he said in an interview. "The claim here was the state was not requiring school districts to provide the academic content students necessarily missed for four hours a day. In fact, the state makes it very clear you're not supposed to teach academic content. So these kids rapidly get behind in academic content. It just seems like the court totally missed the point."

Hogan said he needs to speak with his clients before he can say whether they will appeal again.

Melissa Iyer, an attorney for Arizona with Burch and Cracchiolo in Phoenix, could not be reached for comment.

Follow @MariaDinzeo

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