Are English-only schools coming back?

April 27, 2009

Jeff Bale looks at a Supreme Court case that could threaten the education of immigrant students and other children learning English as a second language.

THE U.S. Supreme Court is now considering one of the most consequential cases about civil rights and schooling in two decades. At stake are the rights of English language learners (ELLs), and the responsibility of state governments and local school districts to provide adequate funding and equal access to schools and the curriculum for all students.

The Court heard the case on April 20, and a ruling is expected by June. But this legal battle was launched long ago.

The Flores v. Arizona case began in 1992, and has wound its way through lower courts ever since. In fact, the girl after whom the case is named, Miriam Flores, was a third-grader when the class-action lawsuit was brought against the Nogales, Ariz., school district. Today, she is a student at the University of Arizona and applying to nursing school.

In other words, a generation of students has grown up before the pressing issues behind the case have been resolved.

The suit started when a group of parents in Nogales, a border city in Arizona, sued the school system for discontinuing its bilingual programs beyond the early grades. At the heart of the lawsuit is the 1974 Equal Educational Opportunities Act (EEOA), which ruled that schools must take "appropriate action" so that all students can participate in instruction equally, regardless of English language proficiency.

By 2000, the case had evolved to include state funding for English language education programs. A federal court ruled that the system Arizona used to fund such programs was "arbitrary and capricious," and that its system of English language education violated the EEOA.

An epic battle has ensued. On one side is the state department of education, run by egomaniac and Harvard-trained lawyer (in other words, not an educator) Tom Horne, backed by the Republican-controlled state house. Opposing them is a range of education and immigrants' rights advocates. Several showdowns, O.K. Corral-style, have taken place since, with federal judges at two different times fining the state millions of dollars for being out of compliance.

In 2006, the state presented its "last and final" response. It would increase funding for English language education by $40 million each year (a mere $200 per student), if:

-- ELLs would be cut off from this extra funding after two years, irrespective of whether they still needed support in English;

all ELLs were segregated into 4-hour-per-day programs to teach English-only, grammar-based programs in oral, reading and writing skills;

districts applied for additional funding, but only after they accounted for other state and federal support and asked for the difference, a practice which has been ruled unconstitutional; and

if the EEOC ruling was lifted and Arizona allowed to follow only the mandates of No Child Left Behind (NCLB) in designing and implementing English language education.

The last lower-court ruling rightfully rejected this argument, thereby triggering the Supreme Court case.

TO GIVE a sense of how the dynamics of the case have changed, it is now called Horne v. Flores--the state superintendent of education "versus" a mother of school-age children learning English in Nogales.

In addition, although the state has cried poverty and slashed all sorts of social programs, it has nevertheless hired none other than Ken Starr (famous for leading the Bill Clinton impeachment crusade) to present its arguments--to the tune of $400,000 in retainer fees so far.

Under the mantra of "state's rights," Starr argued that Arizona has made vast progress with respect to English language education since the suit was first filed, and that court oversight is no longer needed. This argument assumes that "progress" means outlawing bilingual education and replacing it with English-only "submersion" programs, and that segregation and a couple hundred bucks per student is all that schools need to educate ELLs.

A victory for Arizona in this case will undo a generation of federal policy enforcing the language and education rights of immigrant students and U.S.-born students still learning English.

These rights were fought for and won, often school-by-school, at the height of the Chicano civil rights movement in the late 1960s and early 1970s. Chicano activists in California, Arizona, Texas and elsewhere recognized that schools were one of the main sites of anti-immigrant and anti-Chicano oppression. Their struggles to improve schools almost always took up calls for bilingual and bicultural education.

These struggles led not only to bilingual programs across the Southwest, but also were codified in federal law and policy. The Bilingual Education Act of 1968, the EEOC rulings mentioned above, and numerous Supreme Court cases in the 1970s and early 1980s all expanded language and education rights for ELLs.

Those rights have been under attack ever since. At the same time, ELLs have become the fastest-growing population among school-aged children in the U.S. Numerous studies have documented that ELLs are disproportionately poor, are pushed out of schools at rates second only to Native American students, and in fewer and fewer cases get the chance to benefit from bilingual education.

A victory for Arizona in this case will give the green light to other states and districts to turn back the clock on ELL student rights as well. Segregation will be legally mandated again; underfunding will once more be enshrined in law; and the drill-and-kill, English-only approach to education mandated by NCLB will gain new support under the law.

Despite is importance, the Flores case has never really shown up on the radar screen of other immigrant rights activism and coalitions. This needs to change. Just as the struggles over immigrant and Chicano rights drew the connections in the 1960s and 1970s between labor, immigration and schooling rights, so, too, should we today understand that the fight for immigrant rights is a fight against workplace raids, against deportations and for our students having rights in school, too.

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