Horne v. Flores and the Future of Language Policy
by Cecilia Rios-Aguilar & Patricia Gándara - 2012
This paper introduces the special issue, Horne v. Flores and the Future of Language Policy.
The inability of most U.S. schools to address the academic needs of culturally and linguistically diverse learners is a national concern that affects the education of over five million English Learner (EL) students across the U.S. (Smith, Coggins, & Cardoso, 2008). Indeed, educating ELs is one of the most complex educational policy issues facing U.S. educators. In Arizona, ELs comprise 14% of total students enrolled in K-12 schools, for which Spanish is the first language of 81% (Davenport, 2008). As one of five states with the highest concentration of ELs, it is crucial that we explore Arizonas language policies, as these have the potential to impact EL instruction nationwide. The visibility that Arizona has achieved nationally, especially among states seeking to control immigrants, is another reason for studying the intended (and unintended) consequences of implementing such language policies.
Arizona has a long history of denying educational rights to Mexican-origin children (Gándara, in press). The separation of Mexican-origin students was extensively practiced in the state throughout its history (Muñoz, 2006; Powers, 2008; U.S. Commission on Civil Rights, 1972). Sadly, the fight against segregation in Arizona is far from being over. Currently, Arizonas students are inappropriately segregated based on their language skills. And, as a result these educational practices and policies (i.e., segregation and ability grouping), EL students have considerably attained lower levels of academic achievement compared to their English proficient peers. The language policies designed and implemented in Arizona have accomplished only one goal: the perpetuation of educational inequities.
English learners do require special instruction in schools in order to acquire the English needed to succeed in school and in life, and to obtain the same education as other students (Wightman, 2010). Arizona has tried several different programs to educate its ELs including bilingual education and, more recently, a specific form of Structured English Immersion (SEI) best known as the 4-hour English language development (ELD) block. At the same time as these language policies have been enacted, the state has also promulgated and implemented many different educational policies (e.g., changes in standards and high school graduation requirements, and the development of instruments to measure students English proficiency) making evaluation and assessment of their efficacy extremely complicated.
THE CASE: HORNE V. FLORES
In 1992 Miriam Flores, a 4th grader at the time, sued the Nogales Arizona School District (NASD) for failing to provide an adequate education to her and other Limited English Proficient (LEP) students (Gándara & Orfield, in press).1 The suit claimed that NASD did not provide adequately prepared teachers, adequate instructional materials, or a program supported by sufficient district funds to ensure that she and her fellow LEP students were given an equal educational opportunity, as provided in the Equal Educational Opportunity Act (EEOA). That case was prolonged on for almost a decade and a half with Arizona refusing to answer the federal courts demand that the state provide a level of funding for services for EL students that could be shown to bear a rational relationship to the students actual needs (Gándara & Orfield, in press). In 2006, the Court began fining the state $500,000 a day for failing to respond to its orders. Ultimately the court raised this to $2 million a day. This set up a series of appeals that ultimately resulted in the Supreme Court taking the Horne v. Flores case in 2009 (Gándara, in press).
In June of 2009, the Supreme Court ruled that Arizona had sufficiently complied with the law, and that the district court erred in insisting that Arizona had to demonstrate a rational relationship between the funding of programs for ELs and their probable effectiveness, citing debatable lines of research. In particular, the Supreme Court used research that indicates that money does not matter for schooling outcomes (see Hanushek, 1986 for a detailed review) (Gándara, in press). In other words, the Supreme Court detached funding from any evaluation of program quality under the Equal Educational Opportunity Act (EEOA). Furthermore, the Court discussed Arizonas SEI program established by Proposition 203 and indicated that research showed that it was more effective than bilingual education, citing Arizonas own Department of Education study and an amicus curiae brief from the American Unity Legal Defense Fund, an anti-immigration lobby group (Wightman, 2010). The high court also excused Arizona from not responding to the district court orders on the basis that a significant change in factual conditions had likely occurred, and it remanded the case back to the federal district court to clarify several issues that the high court believed would form the basis for concluding that Arizona was in compliance with the federal court order (Gándara & Orfield, in press). The issues to be reviewed at the federal district court included: (1) whether the state had met its obligation to its EL students by shifting from bilingual education to a specific form of SEIthe 4-hour ELD blockwhich the Court characterized as significantly more effective, (2) if general increases in funding had better met the needs of EL students as well as all students, and (3) if structural and managerial changes that had been made in the Nogales school district had appreciably improved the instructional program for ELs. Many of the relevant facts that were examined in the earlier Flores cases must now be reviewed again. The new review will give the court an opportunity to look at the effect of the 4-hour ELD block with more current data. It is critical to mention that resolving educational policy through the courts may not be the most effective way to solve the educational inequities experienced by thousands of EL students.
Several decisively important principles, though, are at stake in the Horne v. Flores case that was to be heard in September 2010. First, and most important, is the precedent it could set for other states. In other words, if the federal district court finds that the program offered by the state of Arizona for its ELs met the EEOA requirement that the state take appropriate action to overcome language barriers that impede equal participation by EL students, then any state in the country can reasonably segregate its EL students away from English speakers for up to the entire daythey would be granted permission to re-create the Mexican rooms (Gándara & Orfield, 2010) that had separated some students on the basis of race in Arizona. Second, states can also deny access to the regular core academic curriculum (i.e., math, science, and social studies) until EL students acquire proficiency in English, which could be many years, thus limiting ELs ability to graduate on-time with their peers (Gándara & Orfield, in press). Finally, it would support the idea of sequential instruction for ELs: first English, then access to the core curriculum, and widening gaps in academic achievement, which schools have hardly ever been able to close and which appear to undermine the essence of Lau v. Nichols (Gándara & Orfield, in press).
THE ROLE OF RESEARCH AND OF EDUCATIONAL RESEARCHERS IN SEGREGATION CASES: THE ARIZONA EXPERIENCE
THE CONTEXT FOR THE RESEARCH AND THE BIRTH OF THE ARIZONA EDUCATIONAL EQUITY PROJECT
Three months after the Supreme Courts decision in 2009, a meeting was called at the Civil Rights Project at UCLA. Bringing together a national group of scholars and civil rights lawyers, the Project asked four questions: (1) what were the principal issues to be raised in the case on remand? (2) what information would the court need in order to make an informed judgment about the effectiveness of Arizonas SEI program of instruction for ELs? (3) what information and data existed to answer these questions? and (4) what research would need to be conducted? Concern about these issues and the deepening racial polarization in Arizona led scholars from UCLA, Stanford, Arizona State University and the University of Arizona to examine how Arizona's ELs are faring under the state's current language policies and to produce the best possible evidence so that the state and the federal district courts could consider this when applying the Supreme Court decisions. Twenty-one researchers from these institutions came forward to conduct the research effort, which became known as the Arizona Educational Equity Project (AEEP). The studies required state-wide data collection of teachers, program coordinators, and other school staff, intensive observations in multiple classrooms, schools and districts, examination of state and district testing data, reviews of past studies to understand what the latest research had to say about the key issues. And, the research would need to be conducted, the data analyzed, and studies reviewed all within a period of about 8 months. It is critical to state that the primary goal of the AEEP was to conduct research that closed existing knowledge gaps. Indeed, at the time the studies were conducted, there was a lack of research on the impact of past and current language policies in Arizona. A secondary purpose was to do research that could be useful to the court. The scholars, who have well established research agendas on these issues, never discussed the studies, methods, or findings with any legal team.
At the same time that the research was conducted, the state of Arizona was experiencing political changes that would tremendously impact the development of the case in many unanticipated ways. First, the Superintendent of Public Instruction, Tom Horne, ran for State Attorney General, winning the election months later. Second, the case was joined by the Arizona Legislature, adding a layer of bureaucracy to the case. Third, the state of Arizona, in the midst of severe budget cuts, found the resources to hire a team of lawyers from the states most prestigious law firms. Fourth, in addition to being able to access almost unrestricted resources, the Arizona Department of Education (ADE) could also access any district or school information to respond to the case. Finally, in 2010, the broadest and strictest anti-illegal immigration measure in recent U.S. history (i.e., HB 1070) was signed into law in the state of Arizona. It was in this deeply complex social and political context that Horne v. Flores would return to federal court in September of 2010.
After several months of intense data collection and analyses, the reports were submitted to the UCLA Civil Rights Project office in June 2010. The researchers received feedback from peer reviewers, leaders in the field, and revised the reports. In July 2010, 9 studies were published through the UCLA Civil Rights Project Office. Three of the nine studies produced by the AEEP are not included in this special issue. These three papers examine the validity of the methodology used to determine who qualifies for special EL services, and the validity of the instruments used to assess English proficiency. These studies have been published in other academic journals (see Goldenberg and Rutherford-Quach, in press, and Florez, in press for details on these studies) and, most importantly, they were instrumental in informing the most recent decision by the Department of Justice (DOJ). In August 2010, DOJ found that Arizonas mechanisms for identifying ELs in need of language services, and the instruments it used to assess students English proficiency in violation of Title VI of the Civil Rights Act of 1964.
THE ROLE OF RESEARCH IN SEGREGATION CASES
There is indeed a history of the role that research plays in segregation cases. As articulated by Ancheta (2006), the Brown Courts well-known Footnote 11 cited a series of psychological and sociological studies demonstrating the harms of segregated education in southern schools. Like Brown, the Méndez v. Westminster case of 1946 featured social science research as testimony to the harms of segregation (Moll, 2010). Although Méndez and Brown are not the only cases in which the courts turned to scientific research to support key rulings, the importance of the scientific research evidence in these cases has led civil rights advocates to routinely appeal to this evidence to help demonstrate violations of the Constitution and civil rights statutes (Ancheta, 2006). While it is clear that past and current bodies of research are critical to make legal arguments in favor of equality of educational opportunities for all children, the role that scientific evidence plays in civil rights and other forms of litigation is far from clear.2 As stated by Ancheta (2006), legal and scientific reasoning operate through highly divergent institutions and processes with highly dissimilar lexicon, methods, and cultures that do not lead to clear pathways for judges, litigators, or expert witnesses to follow. Given our recent experiences in Horne v. Flores, we argue that not only the law and scientific research can influence civil right litigation, but also there exist other contexts that can alter (at least some aspects of) the legal process, including the political context, human subject protection programs, general council offices, professional associations, and the media (Rios-Aguilar & Moll, 2011).
The AEEP knew the critical role that research would play in Horne v. Flores. However, what scholars did not anticipate were the tactics used by those in power to intimidate scholars, to disqualify them as witnesses, to prevent the research conducted to count as evidence in Horne v. Flores, and ultimately threaten some of the researchers with contempt of court if they did not reveal the names of their research participants. After receiving the subponeas from Hornes lawyers, the researchers decided to strategize and protect the privacy of the data they had collected. The subpoenas required researchers to reveal, among many other things, the identity of the participants of the research studies. Researchers refused to provide this information. They clearly expressed their concerns about the implications of providing such data. Indeed, they feared that teachers and school administrators could be intimidated or that school districts could be targeted for a reduction in funding as a result of their cooperation in the studies. Most importantly, they were aware that, if this information was given to the Superintendent, there would be serious consequences for conducting future research on this topic in these school districts. After several months of an intense battle to protect the identity of research participants, and of harassment experienced by the researchers, some researchers withdrew from the case in an effort to protect the identity of the schools and school personnel that had cooperated with their study. In another case, following the judges motion for protective order, the researchers redacted the data requested and provided the data to the Superintendents lawyers. It is critical to mention that researchers did not oppose to providing access to de-identified data for the cross-examination of their studies, but they vehemently opposed to revealing participants information (Rios-Aguilar & Moll, 2011).
On January 11, 2011, after 22 days of testimony, the federal district court trial ended without any of the AEEP studies being entered into the record and without any of the expert researchers taking the stand (Gándara, in press). The judge indicated that a decision would be forthcoming within three months. To date that decision has not been released. The research was referred to frequently, but obliquely, throughout the trial as the Arizona lawyers attempted to refute the findings without actually identifying the studies or the experts (Gándara, in press). The lawyer for Flores shared privately two days before the trial ended that he would not call any expert witnesses. He believed that he would win the case based on his own cross-examination of the states witnesses. Given that he participated in the discussion about the kind of research that would be needed, it would be an understatement to say that the research team was disappointed. It was further frustrating when the states head lawyer argued that the court could not find in favor of Flores because they had not entered any statewide evidence, and had in fact withdrawn their witnesses who had statewide evidence (Gándara, in press). As stated earlier, researchers can play key roles in civil rights cases, and they certainly helped to shape the arguments in this case. Ultimately, the role of the researchers will turn on the trust and understanding they have with the litigators. Nonetheless, AEEP stands as the most comprehensive examination of the effects of a states educational program for ELs ever conducted. Its studies have now been published in various venues where both researchers and lawyers can easily consult them for the next such case that comes along. This historic effort, conducted without funds in record time by mostly Latina/o researchers, challenged Arizona's misguided educational policies in ways they had never been previously challenged.
Many critical lessons were learned after these experiences. First, educational researchers must be better prepared to face these legal processes. Second, we learned that the debate about how to best educate EL students has more often been fueled by ideology and the political context than by actual research findings. Third, researchers must cooperate with lawyers and with policy-makers to make the evidence available and in a way that is understandable to the public and to the courts. Finally, researchers must make research on language policies a priority in their research agendas. More scholarship on the factors that affect EL students educational and occupational trajectories should be conducted regularly because it has the potential to shape future language policies.
Nineteen years after the first Flores filing, the controversy continues, and lower courts will again need to determine what constitutes appropriate education for EL students. As of today, August 12, 2011, the judge has not ruled. While it would be impossible to speculate on the judges decision, it is not difficult to describe the reality faced by thousands of Arizonas ELs who returned to their schools this past week: they will, once again, be segregated based on their English skills. This concretely means that they will not receive the academic content they need to succeed academically. In addition, this means that many of them will not be able to graduate from high school on time. And, this means that they will continue to be stigmatized and will suffer the harmful consequences of being separated from their English proficient peers. Nineteen years of litigation and still no closure, and a generation of English learners lost. This situation is neither acceptable nor tolerable.
OVERVIEW OF THE PAPERS AND THEIR RELATIONSHIP TO HORNE V. FLORES
The studies included in this special issue were prepared to provide evidence about the impact of several aspects of Arizonas educational policies affecting ELs that were being tested in federal court in 2010. The first paper, by Patricia Gándara and Gary Orfield, Segregating Arizonas English Learners: A Return to the Mexican Room? documents the high and increasing segregation among Arizonas schools and then examines the impact, particularly on EL students, of severe segregation at the classroom level mandated by state lawthe 4-hour ELD block. The paper also briefly reviews the history of segregation of Latina/o and Spanish speaking students in Arizona into Mexican schools and the Mexican rooms. A key point made in this paper is that EL students in Arizona are typically, triply segregated in the school to which they are assigned: by ethnicity, by poverty, and by language. Linguistic segregation at the classroom level for much of the day, as is the case of Arizona, exacerbates all the negative impacts of school segregation. For this reason, it is imperative to organize instruction in ways that can alleviate this segregation for students who are learning English.
The second paper, by Eugene E. Garcia, Kerry Lawton, and Eduardo H. Diniz de Figueiredo, The Education of English Language Learners in Arizona: A History of Underachievement, provides a historical portrait of the condition of the education of ELs in Arizona. More specifically, the paper documents the persistent achievement gaps between EL and non-EL students in Arizona from 2005 until 2009. This descriptive comparison allows researchers, educators, and the public in general to gain a more comprehensive understanding of trends in terms of achievement gaps. The results of the study are clear: Arizona has made little to no progress in closing achievement gaps between EL and non-EL students. In addition, this paper compares the progress of Arizonas EL students towards academic achievement relative to EL students in two other cities that do not have enacted such restrictive language policies. Findings, while only descriptive, show that the specific language policy adopted by the state of Arizona (i.e., the 4-hour English language development block) has not generated substantive improvement in academic achievement among EL students. This paper only scratches the surface of issues related to academic outcomes of Arizonas EL students. However, the most valuable contribution of this study is that it highlights the need to conduct studies that consider outcomes beyond overall performance levels. In other words, the authors argue that oversimplified analyses of aggregate student achievement do not help educators and decision-makers to make the policy changes needed to meet the academic and language needs of ELs.
The third paper, by Cecilia Rios-Aguilar, Manuel Gonzalez Canche, and Luis C. Moll, A Study of Arizonas Teachers of English Language Learners, examines the perceived effectiveness of the 4-hour ELD block from the teachers perspective. No study to date had investigated teachers knowledge, opinions, concerns, and understandings about the language policies enacted by the state of Arizona. This study surveyed 880 teachers across the state of Arizona. Findings from this study reveal that Arizonas teachers face very difficult and complex conditions. Furthermore, results show that most teachers indicated that the 4-hour ELD block has been only somewhat effective at their schools. At the same time, the majority of teachers do not think that the goals of the 4-hour ELD block are being met, adding that there is little to no acceleration of EL students English proficiency. These findings suggest that teachers feel that students are acquiring some learning as a result of their instruction, but that the outcomes of 4-hour ELD block have not been what were expected. Most teachers clearly believe that their EL students will not gain sufficient English proficiency in just one year, as mandated by the current language policy. Moreover, most teachers think that the 4-hour block is not effective in providing access to the academic content needed to succeed in school. It is likely that other types of support (e.g., tutoring, academic content instruction and peer role models) are needed to help EL students reach grade level academic achievement. Finally, findings show that the majority of teachers are either very concerned or extremely concerned about segregating students. The study ends with specific recommendations to improve the current instructional arrangement in Arizona. The significance of this paper to the Horne v. Flores case rests on the soundness of the research design and on the importance of documenting teachers voices.
The fourth paper, also by Cecilia Rios-Aguilar, Manuel Gonzalez Canche, and Luis C. Moll, Implementing Structured English Immersion in Arizona: Benefits, Challenges, and Opportunities, collected data from a statewide representative random sample of 26 school districts leadersEnglish Language Coordinators (ELCs)across the state of Arizona to better understand the positive aspects, and the major challenges, of implementing the 4-hour ELD block. Qualitative analyses reveal that the vast majority of ELCs think that, as a result of the program, there is an increased focus on EL students language needs and more opportunities for professional development for teachers. However, ELCs also commented that the implementation of the 4-hour ELD block has: (1) neglected core areas of academic content, (2) contributed to EL students isolation, and (3) assumed that English language learning can be accomplished within an unrealistic timeframe and under a set of unrealistic conditions. The study recommends that school districts need to explore alternative modes of English language development instruction. These alternative programs must take into consideration the local context of school districts, their resources, and existing research.
The fifth paper, by Karen E. Lillie, Amy Markos, M. Beatriz Arias, and Terrence G. Wiley, Separate and Not Equal: The Implementation of Structured English Immersion in Arizonas Classrooms, takes a different approach to describe the characteristics of the existing restrictive language policy in practice. The paper utilizes the trajectory of language policies in Arizona as a lens for examining how they are evidenced in Arizonas SEI classrooms. Researchers utilized ethnographic observation methods, interviews, and other artifacts to document the implementation of the SEI model and instruction of ELs. Three major themes emerged from the analyses: (1) instruction, (2) curriculum, and (3) assessment/reclassification. Furthermore, findings reveal that Arizonas current 4-hour ELD block, as implemented in the observed K-12 SEI classrooms, hinders policy intentions and has a negative impact on EL students schooling success and participation.
The last paper, by Mary Martinez-Wenzl, Karla Perez, and Patricia Gándara, Is Arizonas Approach to Educating its ELs Superior to Other Forms of Instruction?, discusses the origins of Structured English Immersion. In addition, the authors present existing research on the effectiveness of SEI. Once the background is set, then the authors present and examine the evidence used by the U.S. Supreme Court to document the effectiveness of the SEI model. Immediately after, the authors discuss how are Arizonas EL students faring under the alleged significantly more effective instructional program. The paper ends with a presentation of alternative models (e.g., research-based English language development and structured English immersion, and bilingual programs) that have been neglected in the Arizona case.
The litigation on Horne v. Flores requires the federal district court to determine if Arizona is violating the EEOA on a statewide basis. The court will fully evaluate the state-mandated SEI program under Castanedas three prong test. As argued by Wightman (2010), if the court assesses the program as a whole, it should look at the specific form of SEI mandated by the state of Arizona including: (1) the requirement that all material is presented in English, (2) the sufficiency of the AZELLA test for providing evidence of program success, (3) the effectiveness of the 4-hour ELD block, and (4) the effectiveness of the program as a whole in exiting at least a majority of its students in under a year as the program prescribes. Given the evidence presented in this special issue, if the district court fully evaluates these factors under Castanedas three prong test, the current model will likely be held as a violation of the EEOA. It is clear that Arizonas EL students are being segregated and are not receiving the necessary education that other students of the same grade are receiving. Arizonas current SEI model hurts student learning through its inappropriateness and through the segregation they experience, which for most students will undoubtedly last more than one year.
1. The terminology used to describe students who come from households where a language other than English is spoken has changed over time from Limited English Proficient (LEP) to English Language Learner (ELL) to Linguistic Minority (LM), and most recently to English Learners (ELs). However, there is no research that discusses or examines why these changes have been made. What is critical to highlight is the fact that English fluency is best conceptualized as a continuum rather than a dichotomy in which students are or not English proficient. Unfortunately existing research continues to oversimplify these categories and thus fails to acknowledge the ongoing needs of students who come from linguistically diverse circumstances and experiences (Gándara & Rumberger, 2007).
2. It is important to mention that scientific evidence can play different roles in civil rights litigation (i.e., when a court engages in adjucative or legislative fact finding). Depending on the role, research can be subject to very different legal standards in determining whether it is admissible as evidence (see Ancheta (2006) for more information on these roles and its implications for legal decision making).
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