SAN FRANCISCO (CN) – Requiring students to miss regular curriculum to learn English amounts to segregation, an attorney told the 9th Circuit on Monday.
The long-running legal battle began in 1992, in the border town of Nogales, Ariz., but has changed shape over the years.
Miriam Flores sued the state on behalf of her daughter, also named Miriam, claiming the Arizona Department of Education was not providing students in the Nogales Unified School District with adequate English language instruction.
After U.S. District Judge Raner Collins ordered the state in 2000 to end its “arbitrary and capricious spending” on statewide English-language-learner programs, civil-rights lawyers with the Arizona Center for Law in the Public Interest spent the next eight years trying to get the state to comply with the court’s order for more funding.
When the case made its way to the U.S. Supreme Court, a five-justice majority ruled in 2009 that the state had no obligation under the Equal Educational Opportunities Act to fund English-language-learner programs.
On remand, Collins considered whether Nogales violated the rights of English learners by forcing separating them from their peers for four hours a day during which time they undergo intensive language study.
Collins found last year 2013 that the separate instruction model did not violate students’ civil rights, but 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.
Tim Hogan, the civil-rights lawyer who has handled the case for 23 years, told the three-judge panel Monday that separating students causes them to miss out on the regular curriculum and fall behind.
“Four hours of English language development every single day, that program denies students equal access to the academic curriculum and it unnecessarily segregates English-language learners after the first year,” Hogan said.
The panel questioned Hogan extensively on how the Nogales school district continues to violate the law.
“If you have a child in an AP course, that child is segregated from the rest of the class, or vice versa, because of aptitude that they have or don’t have,” Judge Milan Smith noted, abbreviating advanced placement. “What is the difference between if you have child gifted in math in AP calculus, and I have a child that doesn’t have that facility? Why under your theory would not that child in AP be considered segregated or discriminated against, or vice versa?”
Hogan replied that “segregation on the basis of language is not equal participation.”
Smith continued this line of questioning.
“Doesn’t everybody say we want to mainstream these folks as quickly as we can?” He asked. “And, after the first year a lot people go right in, and they don’t have any further segregation by your standard. But those who are having trouble are given extra time and are worked with, so they can get within the mainstream as soon as possible. I get your point that they are missing the core curriculum, but doesn’t there have to be some flexibility? If you have a child that can’t communicate in the language for say, the math or science courses being taught, how is that helpful to them as opposed to what they’re doing now. So how do they do it?”
Hogan was quick to refute that schools should conduct science and math in Spanish.
“Not at all, Your Honor, not at all,” he said, but did not directly answer the rest of Smith’s question.
At one point suggested Hogan that the school district should “mix English-language learners with non-English-language learners.”
Smith later asked David Cantelme, an attorney for the Arizona legislators named as defendants, how much deference the court should owes the state to “get this right.”
The four-hour daily program was one solution that a state-commissioned task force came up with to remedy the problems in the English-language-learner program, based on the initial orders from Judge Collins.
Cantelme replied essentially that the courts should get out of the state’s way.
Judge Clifford Wallace asked how long students would be required to stay in an English-learner program. “Suppose a person has culturally or for their own ability, an inability to learn English, and you keep them in the program for the entire high school,” Wallace said. “Is that correct?”
“After two years, if they’re not making ordinary progress, that means there’s something else affecting that child’s learning,” Cantelme replied. “After two years if they’re not improving, those schools are supposed to address it. They’re always looking at the individual needs of those kids.”
Cantelme argued that Collins’ 2013 ruling should be affirmed, effectively putting the case to bed. “He clearly found that Nogales had an effective ELD [English-language-development] program. And that’s really the end of the case.”
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