Amicus Curiae Brief — Speaker of the Arizona House of Representatives v. Flores (Nos. 08-294, 08-289)
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4 | Supreme Coun, U.S.
FILED
e~ FEB 25 2009
( > \ (|
‘Xoo ; OFFICE OF THE CLERK
Nos. 08-289, 08-294
In the
Supreme Court of the United States
THOMAS C. HORNE, SUPERINTENDENT,
ARIZONA PUBLIC INSTRUCTION
Petitioners
Vv.
MIRIAM FLORES, ET AL. ,
Respondents
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES, ET AL.,
Petitioners
¥.
MIRIAM FLORES, ET AL. ,
Respondents
On Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Brief of the American Unity Legal Defense
Fund, English Language Political Action
Committee, ProEnglish and the Center for
Equal Opportunity, As Amici Curiae
Supporting Petitioners
BARNABY W. ZALL
Counsel of Record for Amici Curiae
Weinberg & Jacobs, LLP
11300 Rockville Pike, #1200
Rockville, MD 20852
(301) 231-6943
50T if Cur
$1.927
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Questions Presented
1. Whether a federal-court injunction seeking to
compel institutional reform should be modified in the
public interest when the original judgment could not
have been issued on the state of facts and law that
now exist, even if the named defendants support the
injunction.
2. Whether compliance with the No Child Left
Behind Act’s extensive requirements for English-
language instruction is sufficient to satisfy the Equal
Educational Opportunities Act’s mandate that States
take “appropriate action” to overcome language
barriers impeding’ students’ access to equal
educational! opportunities.
i
Table of Contents
a eieaaiidannindenenaneoniin iii
I ir IE IID cccissisccicccsccncsccninssemcecenssesonaneinnes 1
I TIO oicciicsccenncesnscrccvcccnsecncossccnsescsscsseds 2
A. “Bilingual Education:” Teaching English
Language Learners in Their Native Languages...3
B. Bilingual Education Was Preferred by Federal
Policies, But Proved Largely Ineffective .............. 4
C. Some Schools Introduced New “English
Immersion” Teaching Methods....................00.c00 7
D. Structured English Immersion Proved More
Successful Than Bilingual Education................. 10
E. Parents and Educators Began Rejecting
Bilingual Education Programs and Advocating for
English Immersion Programs. ......................000000+ 12
F. Federal Policy Preferences Changed to Favor
English Language Acquisition ..................:0cc0eeees 15
I OI res bhacelenemmednndiunnans 17
RIE SE epee HOR OE ATE POE OT RT OD OPEN RC TREE: 19
I. The Decision Below Distorts And
Misapplies The Castaneda Test ................... 19
A. The Equal Educational Opportunities Act .... 19
ii
B. The Fifth Circuit Crafted a Three-Part
Castaneda Test to Evaluate EEOA Claims. ........ 22
C. The Decision Below Distorts and Misapplies
I WI ciiscrtccctadidnbenbiadenmentadeiniinmeaias 26
II. The Decision Below Distorts And
Misapplies The Relationship Between The
EEOA And The NCLB .....0..00.... 0c. cecceccec ce eeeeees 35
A. The Goals of the EEOA and Title III of the
en CC cedeniaiciinabbnwenaednies 35
B. Title III Is An Individually-Focused Civil
STINET 6; 42 isis isiheeices aaeiameaegbasapnideeemadamtauenaaaietn 36
C. The Ninth Circuit’s Approach Could Harm,
EE ER MRM Fea aoe a ees 38
TTT OETA OPTRA Ey POET 39
iil
Table of Authorities
Cases:
Calif. Teachers Ass’n v. State Bd. Of Ed., 271 F.3d
ARIE eS ae a 13, 29
Castaneda v. Pickard, 648 F.2d 989 (5th Cir. 1981)
siocesedaonabioneenaoemakeiiinpiaiboaneilasnseibaisilisieieinesiiaibibei passim
Castaneda by Castaneda v. Pickard, 680 F.2d 456 (5th
a Sc alaeeeneieaniniomniaeeniues 30
Flores v. Arizona, 516 F.3d 1140 (9th Cir. 2008)..........
Lecieseitatsdakdelehatpdgaiiteidiapimiedinamuieniniaunenddeiietinitiidaninbee passim
Gomez v. Illinois State Bd. Of Education, 811 F.2d
I I, scree eaternienibamiioigenianeis 26, 30
Guadalupe Organization, Inc. v. Tempe Elementary
School Dist. No. 3, 587 F.2d 1022 (9th Cir 1978)...
ieee lneicbateeshdeedtiedanirudaenaishiaeieainbpneniesesiieaiaeiaideibitidl 21, 22
Idaho Migrant Council v. Bd. Of Educ., 647 F.2d 69
RRR TREIER SEES. EF ASE ROR 37
Keyes v. School District No. 1, 521 F.2d 465 (10th Cir.
1975), cert. denied, 423 U.S. 1066 (1976) ............ 20
Lau vu. Nichols, 414 U.S. 563 (1974) ....0... 3, 4,5
Serna v. Portales Municipal Schools, 351 F.Supp.
DE LER EA RO a OO 20
iv
Serna v. Portales Municipal Schools, 499 F.2d 1147
CBee Gil. GD cccecresesxsseescisiitiutiiauasmanaen 20
Sorenson v. Secretary of Treasury of U.S., 475 US.
RE CR ies nce nnnnvncesinccssiinincssctnnssensaneessisineeeanaaee 30
United States v. Texas, 342 F.Supp. 24 (E.D.Tex.
1971), aff'd, 466 F.2d 518 (5th Cir. 1972)............ 21
United States v. Texas, 680 F.2d 356 (5th Cir. 1982)
United States v. Texas Education Agency, 532 F.2d
380 (5th Cir.), vacated sub nom. Austin
Independent School District v. United States, 429
COT, GED CID ceccnicnneectsiniunttitninenieciamlinnaaana 21
Valeria v. Davis, 307 F.3d 1036 (9th Cir. 2002)....2, 13
Valeria G. v. Wilson, 12 F. Supp.2d 1007 (N.D. Cal.
BID ccccrssssncsvcescenssescinninissnpinestaisinnnniiiiiaiiimaiiaiaanae 2
Statutes:
Bilingual Education Act of 1974, 20 U.S.C. § 880b et
BO. CEI GED cencescesseccccnsssensopiesventiasiiionsnsenaana 4
Equal Educational Opportunities Act of 1974, 20
Wy ise © BPE vsccesccssecsivsessnieninnaienaaiaaall passim
Title III of the No Child Left Behind Act, 20 U.S.C. §
Ble OP GD, cccovsceessncsnsesnntsnsciamennentiiaaiaae passim
BO UBS. © BG C6 COW cncescccsecveesasteesscesenenmamnan 15
BD UF TIE. B GBB Pace cocenscccsesvescescateeesecssennemiunaaiay 16, 31
Neen csi adacssnensernensenense 4
Teen i dsiiaaieremncenconnensons 10
Nee a casamsnnsnbanceoencvenes 9
NESE 9
147 Cong. Rec. $13328 (Dec. 17, 2001) .............. 15, 38
Miscellaneous:
Accountability Division, Research and Evaluation
Section, Arizona Dept. of Education, “State
Report Cards,” Dec. 29, 2008, available at:
www.ade.az.gov/srcs/statereportcards........... 31, 32
Arizona Dept. of Education, The Effects of Bilingual
Education Programs and Structured English
Immersion Programs on Student Achievement: a
Large-Scale Comparison, July 2004, available at:
http://epsl.asu.edu/epru/articles/EPRU-0408-66-
Cele oi sacccustondanenesesntanccooes 4,9, 10
Keith Baker, et al., Effectiveness of Bilingual
Education: A Review of the Literature, U.S. Dept.
of Education, 1981, available at:
http://www.eric.ed.gov/ERICDocs/data/ericdocs2sq
l/content_storage_01/0000019b/80/32/b7/39. pdf
Paul Berman, et al., Meeting the Challenge of
Language Diversity: An Evaluation of Programs
for Pupils of Limited Proficiency in English, BW
Associates, Berkeley, California, 1992................... 6
vi
Commission on Behavioral and Social Sciences and
Education, National Research Council, Institutes
of Medicine Educating Language Minority
Children, National Academy Press, Washington,
D.C., 1998, available at
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/15/93/9d.pdf............. 7
Comm. On Ed. & the Work Force, “No Child Left
Behind Act of 2001,” H.R. Rep. 107-63, Pt. 1..........
Scssenseiidiigleiclia eM ale is ER ane 12, 38
Commonwealth of Massachusetts Board of Education,
Report No. 5 to the United States District Court,
District of Massachusetts on Boston School
Desegregation, Vol. 2, July 15, 1985..................... 6
Conf.Rep. No. 93-1026, 93d Cong., 2nd Sess. (1974),
reprinted in (1974) U.S.Code Cong. & Ad.News
TITTY ss chseschinccisechinacesceadeabchctitaiialinadiasbaieneikanatadiniatanemame 5
Elections Division, State of Massachusetts,
“Massachusetts 2002 Election Ballot Question
Results,” available at:
www.sec.state.ma.us/ele/eleres/questions.htm .... 14
English for the Children of Massachusetts, Ballot
Initiative Campaign Launched to Dismantle
Bilingual Education in Massachusetts, July 31,
2001, available at:
www.onenation.org/0107/pr073101.htm ............. 14
vii
Russell Gersten, et al., Bilingual Immersion: A
Longitudinal Study, READ Institute, Washington,
D.C. 1992, available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/29/b2/e6. pdf............ 10
Daniel Gonzalez, “Arizona Win Encourages Bilingual
Ed Opponents,” Arizona Republic, Nov. 20, 2000,
A-1, available at:
http://www.onenation.org/0011/112000a.htm..... 13
Joanne Jacobs, The Education of J*A*I*M*E
C*A*P*E*L*L*A*N: English Learner Success in
California Schools. Lexington Institute.
Arlington, VA, 2008, available at:
http://lexingtoninstitute.org/docs/Joanne%20Jacob
s%20Paper%20-%20June%202008. pdf .......... 11, 12
Massachusetts Bilingual Education Commission,
Striving for Success: The Education of Bilingual
Pupils: A Report of the Bilingual Education
Commission. Boston, 1994. ............0..0..0..ccccecceeeee es 7
Rita Montero, “A Tale of Two Tongues,” Denver Post,
May 25, 1997, available at:
www.onenation.org/1997/052597.html................ 12
New York City Board of Education, Educational
Progress of Students in Bilingual and ESL
Programs: a Longitudinal Study, 1990-1994,
available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont
ent_storage_01/0000019b/80/13/9a/d1.pdf........... 10
Vili
PBS Online Newshour, “Double Talk,” Newshour
Transcript, Sept. 21, 1997, available at
www.pbs.org/newshour/bb/education/july-
dec97/bilingual 9-21. html ...........000 ee 13
Rosalie Pedalino Porter, FORKED TONGUE: THE
POLITICS OF BILINGUAL EDUCATION, 2nd ed. (1996)
Christine Rossell, et al., Bilingual Education in
Massachusetts: The Emperor Has No Clothes,
Pioneer Institute, Boston, Massachusetts, 1996,
available at:
http://eric.ed.gov/ERICDocs/data/ericdocs2sql/cont:
ent_storage_01/0000019b/80/15/3d/04. pdf......... 7,9
Kelly Torrance, Immersion Not Submersion: Lessons
from Three California Districts’ Switch From
Bilingual Education to Structured Immersion,
Vol. II. Lexington Institute, Arlington, VA, 2006,
available at:
http://lexingtoninstitute.org/docs/707.pdf ........... 11
U.S. Dept. of Education, “Title III--Language
Instruction For Limited English Proficient And
Immigrant Students Language Instruction for
Limited English Proficient and Immigrant
Students (II]),” No Child Left Behind: A Desktop
Reference, available at:
www.ed.gov/admins/lead/account/nclbreference/pa
I I sais sili esiineblelapelilgebaibenbiceoicbacgnenasidiaill 16, 36
1
INTEREST OF AMICI
The American Unity Legal Defense Fund is an
independent, national, non-profit educational
organization dedicated to preserving our historical
unity as Americans into the 21st Century.
www.americanunity.org. AULDF has filed amici
curiae briefs in this Court, including in Mohawk
Industries v. Williams, No. 05-465 (brief of the
Immigration Political Action Committee and five
other organizations), and Crawford v. Marion County
Election Board, Nos. 07-21, 07-25.
The English Language Political Action
Committee is an independent, bipartisan national
committee devoted to promoting English as the
Official Language.
ProEnglish is a member-supported, national,
non-profit organization working to educate the public
about the need to protect English as our common
language and to make it the official language of the
United States. www.proenglish.org. ProEnglish has
been active in the courts, including providing
essential support to proponents of an Arizona
initiative to make English the official language.
Arizonans for Official English v. Arizona, No. 95-974.
The Center for Equal Opportunity is a
national, non-profit organization which opposes
1 Pursuant to Rule 37.6, amici certify that no counsel
for a party authored this brief in whole or in part, no such
counsel or party made a monetary contribution intended to fund
the preparation or submission of the brief, and no person other
than the amici curiae or their counsel made such a monetary
contribution. All parties have consented to the filing of this
brief.
2
bilingual education, because it segregates students by
national origin, encourages identity politics, and fails
to teach children English. www.ceousa.org. CEO has
assisted parents of English Language Learners to
challenge ineffective bilingual education programs in
several states.
PRELIMINARY STATEMENT
The decision below rests on two fundamental
errors:
« A misunderstanding and misapplication of the
Castaneda test long used to evaluate claims
under the Equal Educational Opportunities
Act (“EEOA”); and,
* A misunderstanding of the _ relationship
between the EEOA and Title III of the No
Child Left Behind Act (“NCLB”).
Both errors, described in more detail below,
stem from the failure of the Ninth Circuit to
understand the evolution in methods for teaching
English Language Learners. Demonstrating the
errors requires a brief description of the three-
decade-long movement from “bilingual education” to
more effective English Immersion instruction.
“(T]he debate is a neutral one, about which
system will provide LEP [Limited English Proficient]
children with the best education to enable them to
function as American citizens and enjoy the
opportunities and privileges of life in the United
States.” Valeria v. Davis, 307 F.3d 1036, 1041 (9th
Cir. 2002), quoting, Valeria G. v. Wilson, 12
F.Supp.2d 1007, 1014-15 (N.D. Cal. 1998) (“This
court cannot discern from the face of Proposition 227
any hidden agenda of racial or national origin
discrimination against any group”).
3
The movement from “bilingual education” to
“English language acquisition” is, to the leading
authorities, a civil rights and enabling issue:
Without competence in the _ standard
language of the society, immigrants... are ata
disabling disadvantage, unable to share in the
economic opportunities of a democratic society.
. .. The sooner this enabling skill is acquired,
the sooner children can join in the full life of
their school and community.
Rosalie Pedalino Porter, FORKED TONGUE: THE
POLITICS OF BILINGUAL EDUCATION, 2nd ed. (1996), at
254
A. “Bilingual Education:” Teaching
English Language Learners in Their
Native Languages:
Before Lau v. Nichols, 414 U.S. 563 (1974),
efforts to teach English Language Learners were
haphazard or non-existent. In Lau, for example, this
Court noted that of 2,856 children of Chinese
ancestry in the San Francisco school system who did
not speak English, 1,800 received no supplemental
instruction to teach them English. Lau, 414 U.S. at
564. California law at the time provided for assistance
to those who could not speak English, but at the
discretion of the school system. 414 U.S. at 565.
Justice Douglas, writing for the Court, found
that the failure to provide at least some assistance
violated Section 601 of Title VI of the Civil Rights Act
of 1964, because it “denies them a meaningful
opportunity to participate in the educational
program.” 414 U.S. at 568. This Court did not
4
mandate any particular form of assistance for
language-minority children:
No specific remedy is urged upon us.
Teaching English to the students of Chinese
ancestry who do not speak the language is one
choice. Giving instructions to this group in
Chinese is another. There may be others.
Petitioners ask only that the Board of
Education be directed to apply its expertise to
the problem and rectify the situation.
414 US. at 564-65.
One early attempt at teaching English
Language Learners was “bilingual education.”
“Bilingual education/native language instruction’
means a language acquisition process for students in
which much or all instruction, textbooks, or teaching
materials are in the child's native language other
than English.” A.R.S. § 15-751.1 (2008) (emphasis
added).
“Bilingual programs make use of students’
native language in the classroom while developing
English.” Arizona Dept. of Education, The Effects of
Bilingual Education Programs and _ Structured
English Immersion Programs on _ Student
Achievement: a Large-Scale Comparison, July 2004,
at 1.
B. Bilingual Education Was Preferred by
Federal Policies, But Proved Largely
Ineffective:
In the Bilingual Education Act of 1974, 20
U.S.C. § 880b et seq. (1976), Congress expressly
directed that the state and local agencies receiving
funds under the Act were free to develop their own
5
programs. Conf.Rep. No. 93-1026, 93d Cong., 2nd
Sess. (1974), reprinted in (1974) U.S.Code Cong. &
Ad.News 4093, 4206.
The federal Department of Health, Education
and Welfare, however, issued the so-called “Lau
Guidelines,” which promoted the use of bilingual
education. “Following the Supreme Court's decision
in Lau, HEW developed the ‘Lau Guidelines’ as a
suggested compliance plan for school districts which,
as a result of Lau, were in violation of Title VI
because they failed to provide any English language
assistance to students having limited English
proficiency.” Castaneda v. Pickard, 648 F.2d 989,
1006 (5th Cir. 1981) (“Castaneda”). “Under the Lau
Guidelines, plaintiffs argue, ‘pressing English on the
child is not the first goal of language remedciation.’”
Id.
The Lau Guidelines were the result of a
policy conference organized by HEW; these
guidelines were not developed through the
usual administrative procedures employed to
draft administrative rules or regulations. The
Lau Guidelines were never published in the
Federal Register. Since the Department itself
in its administrative decision found that
RISD’s [the Raymondville Independent School
District’s] departure from the Lau Guidelines
was not determinative of the question whether
the district complied with Title VI, we do not
think that these guidelines are the sort of
administrative document to which we
customarily give great deference in our
determinations of compliance with a statute.
Id.
6
Nevertheless, most federal funding and school
system pedagogical decisions assumed the Lau
Guidelines as a federal mandate, and suits, including
the landmark Castaneda case, were brought alleging
violations of the Guidelines. Jd.
Over time, these bilingual education programs
proved inadequate to teaching children either English
or subject matter. In 1981, the U.S. Department of
Education concluded that “the case for the
effectiveness of “Transitional Bilingual Education’ is
so weak that exclusive reliance on this instructional
method is clearly not justified.” Keith Baker, et ai.,
Effectiveness of Bilingual Education: A Review of the
Literature, ‘Technical Analysis Report Series, U.S:
Dept. of Education, at 8 (“Dept. of Education Study”).
In 1985, the Massachusetts Board of Education
concluded that “it appears that bilingual programs
both segregate them and fail to teach a substantial
proportion of them the skills which, according to the
Lau decision, are essential.” Commonwealth of
Massachusetts Board of Education, Report No. 5 to
the United States District Court, District of
Massachusetts on Boston School Desegregation, Vol.
2, July 15, 1985, at 74 (emphasis in original).
In 1992, a California State study examined 20
years of bilingual education, and found no evidence
that native language instruction is beneficial, and
also found that students are kept in bilingual
education programs for too many years. Paul
Berman, et al., Meeting the Challenge of Language
Diversity: An Evaluation of Programs for Pupils of
Limited Proficiency in English, BW _ Associates,
Berkeley, California, 1992, at 38.
In 1994, the Massachusetts _ Bilingual
Education Commission analyzed 23 years of bilingual
7
education. eed concluded that there was no evidence
that “transitional bilingual education” programs
produced good results. Massachusetts Bilingual
Education Commission, Striving for Success: The
Education of Bilingual Pupils: A Report of the
Bilingual Education Commission, Boston, 1994.
In 1996, the Rossell/Baker study analyzed 76
reliable research studies on bilingual education,
concluding there is no evidence that bilingual
education programs are superior for teaching either
English or subject matter. Christine Rossell, et al.,
Bilingual Education in Massachusetts: The Emperor
Has No Clothes, Pioneer Institute, Boston,
Massachusetts, 1996 (“Rossell”).
In 1998, the National Research Council of the
National Institutes of Medicine reviewed 29 years of
bilingual education and concluded that there was no
long-term advantage in teaching literacy in a child’s
native language and no negative effects from teaching
English language literacy first. Commission on
Behavioral and Social Sciences and Education,
National Research Council, Institutes of Medicine
Educating Language Minority Children, National
Academy Press, Washington, D.C., 1998.
C. Some Schools Introduced New
“English Immersion” Teaching Methods:
Some schools began using an alternative
method of instruction: “immersing” the students in
English, and providing special assistance in other
languages only when needed. In 1981 the USS.
Department of Education described the rationale:
The commonsense’ observation _ that
children should be taught in a language they
8
understand does not necessarily lead to the
conclusion they should be taught in their home
language. They can be successfully taught in a
second language if it is done right. The key to
successful teaching in the second language
seems to be to insure that the second language
and subject matter are taught simultaneously
so that subject content never gets ahead of
language. Given the American setting, where
the language-minority child must ultimately
function in an _ English-speaking society,
carefully conducted second-language
instruction in all subjects may well be
preferable to bilingual methods.
Dept. of Education Study, at 8.
A 1996 Massachusetts review of 76 studies
describes the English Immersion classroom:
The language of instruction in a structured
immersion program is English at a level the
child can understand in a_ self-contained
classroom of LEP students who are at
approximately the same level of English
language knowledge and the same age. The
children in a structured immersion classroom
do not have to be of the same language
background, but the teacher should be trained
in second language acquisition techniques.
These programs should be fully integrated into
regular schools so that students are exposed to
English speakers on the playground, in the
cafeterias, the halls, assemblies, and other
areas before, during, and after school. LEP
students should probably not remain in self-
contained classrooms for more than a year,
even if the language of instruction is English.
Rossell, supra, at 9.
Arizona law, enacted by Proposition 203,2
defines one such method, known as Structured
English Immersion (“SEI”):
“Sheltered English immersion” or
“structured English immersion” means an
English language acquisition process for young
children in which nearly all classroom
instruction is in English but with the
curriculum and presentation designed for
children who are learning the language. Books
and instructional materials are in English and
all reading, writing, and subject matter are
taught in English. Although teachers may use
a minimal amount of the child's native
language when necessary, no subject matter
shall be taught in any language other than
2 “Proposition 203 largely abolished bilingual education,
replacing it with sheltered English immersion, a_ teaching
method ‘in which nearly all classroom instruction is in English
but with the curriculum and presentation designed for children
who are learning the language.’” Flores v. Arizona, 516 F.3d
1140, 1149 (9th Cir. 2008).
Contrary to the lower court’s assertion about bilingual
education being “abolished,” bilingual education teaching
methods are still available in Arizona. A.R.S. §§ 15-752, 15-753
(2000). Structured English Immersion (“SEI”) is the default
instructional method; children who obtain waivers, based on
educators’ evaluations and parental consent, may be placed in
bilingual education classrooms. Id. Approximately 7,900
students obtained waivers and participated in _ bilingual
education programs in the 2002-03 academic year. Arizona Dept.
of Education, The Effects of Bilingual Education Programs and
Structured English Immersion Programs on_ Student
Achievement: a Large-Scale Comparison, July 2004. (“Arizona
Student Achievement Study”), at Table 1, P. 5. More than
65,000 students participated in SEI programs. Jd.
10
English, and children in this program learn to
read and write solely in English.
A.R.S. § 15-751.5 (2008).
D. Structured English Immersion Proved
More Successful Than Bilingual
Education:
In 1992, the Research in English Acquisition
and Development Institute studied El Paso, Texas’s,
“Bilingual Immersion Project,” and found that, over
the ten-year study period, Limited English
Proficiency children in English immersion classes
consistently outperformed children in _ native
language instruction classes in both learning English
and in subject matter. Russell Gersten, et al.,
Bilingual Immersion: A Longitudinal Study, READ
Institute, Washington, D.C. 1992.
In 1994, the New York City Board of Education
found that students in English as a Second Language
classes (similar to immersion programs) exited their
special program faster and did better in mainstream
classrooms than students taught in their native
language. New York City Board of Education,
Educational Progress of Students in Bilingual and
ESL Programs: a Longitudinal Study, 1990-1994.
The Arizona Department of Education
reported that, in academic year 2002-03, “[TJhose
students in SEI programs significantly outperformed
bilingual students in 24 out of 24 comparisons. .. .
[Bljilingual students are more than a year behind
their SEI counterparts in seventh and eighth grade.”
Arizona Student Achievement Study, at 3.
Similar results were achieved in California.
11
California made headlines across. the
country when test scores were released after
the passage of Proposition 227. Opponents of
the law had predicted it would spell disaster for
English learners. But quite the opposite
occurred. Only a quarter of English learners
scored in the top two proficiency categories on
the California English Language Development
Test (CELDT) in 2001, shortly after
Proposition 227 was implemented, and the first
year the exam was given. By 2005, almost haif
did — 47 percent.
Kelly Torrance, Jmmersion Not Submersion: Lessons
from Three California Districts’ Switch From
Bilingual Education to Structured Immersion, Vol. II.
Lexington Institute, Arlington, VA, 2006, at 4.
In addition, those who completed the program
sometimes outdid native English-speakers in test
performance.
A larger group of students start as English
Learners but achieve proficiency, making them
Reclassified Fluent English Proficient (RFEP).
These students “do just as well as, and, in
some cases, even better than non-EL students
on every state standardized academic test,
including the California Standards Test, the
Stanford Assessment Test and the California
High School Exit Exam,” notes the 2007
Evaluation Report on the California High
School Exit Exam (CAHSEE) by Human
Resources Research Organization.
Joanne Jacobs, The Education of -J*A*I*M*E
C*A*P*E*L*L*A*N: English Learner Success in
California Schools. Lexington Institute. Arlington,
VA, 2008, at 5.
12
“Remarkably, 52 percent of reclassified
students passed the college-prep courses required by
the University of California and California State
University systems in 2003, compared to only 32
percent of students who speak English as thei. first
language.” Jd., at 7.
E. Parents and Educators Began
Rejecting Bilingual Education Programs
and Advocating for English Immersion
Programs:
Given these dramatic differences in success
rates, it was inevitable that parents and caring
educators began clamoring for more successful
programs for English Language Learners. “Over the
past few years, the Committee has heard a growing
number of complaints from parents whose children
have been placed and retained in bilingual education
courses without their permission or knowledge. In
many instances, these parents faced great resistance
in their efforts to remove their children from such
programs.” Comm. On Ed. & the Work Force, “No
Child Left Behind Act of 2001,” H.R. Rep. 107-63, Pt.
1, at 277.
One was Rita Montero, a member of the
Denver, Colorado, School Board, and once a supporter
of bilingual education, who changed her view: “As a
mother whose child was forced to stay in this
program, I know its problems first-hand.”3 Montero’s
son, Camilo, was put into a bilingual education class,
at her request. Her second-grade son had been doing
3 Rita Montero, “A ‘Tale of ‘l'wo Tongues,” Denver Post, May 25,
1997.
13
fractions and adding three digit numbers, but his
bilingual education class was far behind Camilo’s
capabilities: “So I said to the teacher this is it; I want
him to be taken out and put in an English-speaking
class.”4
Similar parent and educator disquiet over
bilingual education’s failures led to successful voter
initiatives in California (1998), Arizona (2000), and
Massachusetts (2002):
Well, the overwhelming practical evidence
is that bilingual education has failed on every
large scale case that's been tried in the United
States, in particular in California. The origins
of this initiative was the case last year of a lot
of immigrant Latino parents in downtown LA,
who had to begin a public boycott of their local
elementary school to try to force the school to
give their children the right to be taught
English, which the school was denying.
“Double Talk,” supra (Statement of Ron Unz). The
Ninth Circuit repeatedly upheld California’s
Proposition 227. Valeria v. Davis, supra; Calif.
Teachers Ass’n v. State Bd. Of Ed., 271 F.3d 1141 (9
Cir. 2001).
The California reform movement stimulated
Arizona’s Proposition 203, which passed with 63% of
the vote on the Nov. 2000 ballot. Daniel Gonzalez,
“Arizona Win Encourages Bilingual Ed Opponents,”
Arizona Republic, Nov. 20, 2000, A-1.
In 2002, Massachusetts voters adopted
Question 2 by a vote of 68% to 32% of those voting.
4 PBS Online Newshour, “Double ‘l'alk,” Newshour Transcript,
Sept. 21, 1997 (“Double Talk”).
14
Elections Division, State of Massachusetts,
“Massachusetts 2002 Election Ballot Question
Results”.
Lincoln Jesus Tamayo, statewide chair of
English for the Children of Massachusetts,
argued that a ballot initiative was the only
solution. “As a Latino immigrant child who
arrived in America speaking no English, I
know the importance of learning that
language. As a high school principal, I have
seen the dismal results of our current so-called
bilingual programs, which teach English much
too slowly. And as Chairman of the
Massachusetts Bilingual Education Advisory
Council, I recognized the hopelessness of
legislative efforts to reform this dreadful
system of Spanish-only instruction. We've
already lost too many generations of Latino
students; the ‘English for the Children’
initiative is their only chance.”
The views of Mr. Tamayo were seconded by
those of Co-Chair Rosalie Pedalino Porter,
herself an immigrant child, former director of
bilingual programs for Newton, MA, and
author of Forked Tongue, a powerful critique
of bilingual education. “I learned English as a
child in school, but was later forced to
administer a system which prevented other
immigrant children from doing the same. After
wasting fifteen years trying to reform bilingual
programs, I’ve decided we must end them
instead.”
English for the Children of Massachusetts, Ballot
Initiative Campaign Launched to Dismantle
Bilingual Education in Massachusetts, July 31, 2001.
15
F. Federal Policy Preferences Changed
to Favor English Language Acquisition:
This evolution in teaching methods gradually
penetrated federal policy, leading to the end of
policies and “Lau guidelines” preferring bilingual
education. In 2001, Congress enacted Title III of the
No Child Left Behind Act, Pub.L. No. 107-110, 115
Stat. 1425 (“NCLB”).
The NCLB reversed the federal educational
priorities for English Language Learners and
promoted English language acquisition. See, e.g.,
Section 1072 of NCLB, replacing “Office of Bilingual
Education and Minority Languages Affairs’’ and
“Office of Bilingual Education” in the Department of
Education Organization Act (20 U.S.C. 3401 et seq.),
with “Office of English Language Acquisition,
Language Enhancement, and Academic Achievement
for Limited English Proficient Students’’.
Yet we know what happened to bilingual
education. It got off track. Instead of kids
learning English, we ended up isolating kids,
took them on a train track that took them to
their language and left them there, put them in
schools and classrooms where they basically
were being taught in their language and they
were not being allowed to learn English
essentially, or they were not being asked to
learn English.
147 Cong. Rec. 513328 (Dec. 17, 2001)(Statement of
Sen. Gregg).
The new Title III of NCLB requires federal
grantees “to help ensure that children who are
limited English proficient, including immigrant
16
children and youth, attain English proficiency,
develop high levels of academic attainment in
English, and meet the same challenging State
academic content and student academic achievement
standards as all children are expected to meet.” 20
U.S.C. § 6812(1).
Thus, where “[uJnder the Lau Guidelines,
plaintiffs argue, ‘pressing English on the child is not
the first goal of language remediation’,” Castaneda,
648 F.2d at 1006, under Title LI] of the NCLB,
attaining English proficiency was the first goal. 20
U.S.C. § 6812(1).
The U.S. Department of Education describes
the new NCLB requirements for schools as:
School districts must use Title III funds to
provide high-quality language _ instruction
programs that are based on scientifically based
research, and that have demonstrated that
they are effective in increasing English
proficiency and student achievement.
Districts are required to provide high-
quality professional development to classroom
teachers, principals, administrators, and other
school or community-based organizational
personnel in order to improve the instruction
and assessment of limited English proficient
students.
Districts are held accountable for making
adequate yearly progress as described in Title I
and meeting all annual achievement objectives.
U.S. Dept. of Education, “Title II] - Language
Instruction For Limited English Proficient And
Immigrant Students Language Instruction for
Limited English Proficient and Immigrant Students
17
(III),” No Child Left Behind: A Desktop Reference
(“NCLB Desktop Reference”).
Thus, America’s methods for teaching English
Language Learners have moved beyond ineffective
bilingual education programs measured by “process”
or “inputs”, toward a result-oriented test of whether
children are succeeding. The decision below missed
this evolution:
If anything, after 2000, when Arizona
moved away from bilingual education and
required most courses to be taught in English,
regardless of students’ language abilities, these
challenges have become greater: a_ tenth
grader, for example, who speaks no English but
must pass a biology course taught entirely in
English will require considerable assistance.
516 F.3d at 1169.
This statement, central to the Ninth Circuit’s
belief that more resources were necessary, does not
reflect an understanding of the Structured English
Immersion program, or its results. The essence of SEI
programs is that students are given the assistance
necessary, but based on an individual student’s
needs, not on an assumption that the student will not
do well in an English-language curriculum.
SUMMARY OF ARGUMENT
The Ninth Circuit decision below made two
fundamental errors:
* misunderstanding and ~misapplying’§ the
Castaneda test long used to evaluate claims
under the Equal Educational Opportunities
Act; and,
18
* misunderstanding Title III of the No Child Left
Behind Act, and misapplying the relationship
between the EEOA and Title III.
Both errors stem from the same root: a failure
of the Ninth Circuit to understand the evolution in
methods for teaching English Language Learners,
described supra.
The three-part Castaneda test was formulated
to permit courts to evaluate claims under the Equal
Educational Opportunities Act, the post-Lau effort to
insure that school systems made a “good faith” effort
to assist English Language Learners. The Ninth
Circuit attempted to apply the Castaneda test in this
case, but did not understand it. As a result, the Ninth
Circuit changed the Castaneda test from one focused
on results, to one measuring inputs. Because
demands for more money are limitless, this change
mires the Ninth Circuit in inappropriate legislative
decision-making, and contradicts the evolution of
teaching methods now reflected in federal law.
In addition, the Ninth Circuit distorted and
mis-applied the results test which is explicitly part of
the Castaneda test. The lower court recited, but
dismissed evidence that Arizona is achieving the kind
of results sought in the No Child Left Behind Act and
the EEOA.
Similarly, the decision below misunderstood
the relationship between the EEOA and Title III of
the NCLB. In the context of the evolution of teaching
methods, described supra, Title III of the NCLB can
be seen as the legislative ratification of the three-part
Castaneda test. In particular, both the third prong of
the Castaneda test and Title III require measurable
results. The Ninth Circuit could not connect the two
results tests, even though they are essentially the
19
same. Thus, the Ninth Circuit not only failed to
understand the Castaneda test and how it applies to
Arizona’s program, but also how the EEOA and Title
III harmonize toward the same goal.
Adopting the Ninth Circuit’s new formulation
of the EEOA might resurrect one of the chief
criticisms of ineffective bilingual education programs:
that they keep English Language Learners segregated
longer than necessary, not only slowing their English
language acquisition but impeding their ability to
learn school subjects taught in English. Schools which
see ELL assistance programs as means to squeeze
additional funds out of reluctant legislatures would
feel pressure to keep the students in the programs
longer. This would mean that the Ninth Circuit
would be promoting exactly what it purports to solve:
keeping English Language Learners away from
English proficiency.
ARGUMENT
I. THE DECISION BELOW DISTORTS AND
MISAPPLIES THE CASTANEDA TEST.
A. The Equal Educational Opportunities
Act:
The Equal Educational Opportunities Act of
1974, 20 U.S.C. § 1703(f), says, in relevant part: “No
State shall deny equal educational opportunity to an
individual .. . by — (f) the failure by an educational
agency to take appropriate action to overcome
language barriers that impede equal participation by
its students in its instructional programs.”
20
The legislative history of the EEOA “is very
sparse, indeed almost non-existent.” Castaneda, 648
F.2d at 1001. “The EEOA was a floor amendment to
the 1974 legislation amending the Elementary and
Secondary Education Act of 1965, 88 Stat. 338-41.”
Id.
The interpretation of Section 1703(f) has
generally centered on the requirement that schools
take “appropriate action to overcome language
barriers.”
The difficult question presented by
plaintiffs’ challenge to the current language
remediation programs in RISD is really
whether Congress in enacting § 1703(f)
intended to go beyond the _— essential
requirement of Lau, that the schools do
something, and impose, through the use of the
term “appropriate action” a more _ specific
obligation on state and local educational
authorities.
Castaneda, 648 F.2d at 1008.
In Serna v. Portales Municipal Schools, 351
F.Supp. 1279 (D.N.M.1972), aff'd on other grounds,
499 F.2d 1147 (10th Cir. 1974), the district court
found an unconstitutional denial of equal educational
opportunity. The Tenth Circuit affirmed the decision
on the non-constitutional ground of Section 601 of
Title VI. The court further stated that because
Section 601 gives a right to bilingual instruction,
bilingual-bicultural education can be ordered. 499
F.2d at 1154.
The Tenth Circuit, in Keyes v. School District
No. 1, 521 F.2d 465 (10th Cir. 1975), cert. denied, 423
U.S. 1066 (1976), criticized Serna, refused to order
bilingual-bicultural education as a remedy, and
21
expressly held that a specific program of bilingual-
bicultural education was not required by the
Fourteenth Amendment. On the other hand, in
United States v. Texas Education Agency, 532 F.2d
380, 398 (5th Cir.), vacated sub nom. Austin
Independent School District v. United States, 429 U.S.
990 (1976), a certain form of bilingual-bicultural
education was held to be a proper part of a remedy
fashioned by the district court to eliminate de jure
segregation. A _ similar holding where de jure
segregation had existed was made in United States v.
Texas, 342 F.Supp. 24 (E.D.Tex.1971), aff'd, 466 F.2d
518 (5th Cir. 1972).
The early judicial analysis and application
reached perhaps its deepest point in Guadalupe
Organization, Inc. v. Tempe Elementary School Dist.
No. 3, 587 F.2d 1022 (9th Cir 1978). In Guadalupe,
the Ninth Circuit was asked whether Lau and the
HEW guidelires required Tempe, Arizona, “to
provide all non-English-speaking Mexican-American
or Yaqui Indian students attending district schools
with bilingual-bicultural education” which, inter alia,
“reflects the historical contributions of people of
appellants’ descent to the State of Arizona and the
United States.” Guadalupe, 587 F.2d at 1024.
The Ninth Circuit rejected the request for
bilingual-bicultural education:
We hold that the appellees fulfilled their
equal protection duty to children of Mexican-
American and Yaqui Indian origin when they
adopted measures, to which the appellants do
not object, to cure’ existing language
deficiencies of non-English-speaking students.
‘There exists no constitutional duty imposed by
the Equal Protection Clause to _ provide
22
bilingual-bicultural education such as _ the
appellants request.
587 F.2d at 1026-27. The Ninth Circuit similarly
rejected claims under Section 601 of the Civil Rights
Act of 1964 and under the EEOA. 587 F.2d at 1029-
30.
The Ninth Circuit explained:
Whatever may be the consequences,
good or bad, of many tongues and cultures
coexisting within a single nation-state,
whether the children of this Nation are
taught in one tongue and about primarily
one culture or in many tongues and about
many cultures cannot be determined by
reference to the Constitution. We _ hold,
therefore, that the Constitution neither
requires nor prohibits the bilingual and
bicultural education sought by the
appellants. Such matters are for the people
to decide.
587 F.2d at 1027.
B. The Fifth Circuit Crafted a Three-
Part Castaneda Test to Evaluate EEOA
Claims:
In 1981, the Fifth Circuit handed down the
landmark decision in Castaneda v. Pickard, 648 F.2d
989 (5th Cir. 1981). The Raymondville, Texas,
bilingual education program offered intensive
language instruction, in addition to bilingual content
instruction, for the first three years. “The articulated
goal of the program is to teach students fundamental
reading and writing skills in both Spanish and
English by the end of third grade.” 648 F.2d at 1004-
23
05. After the third grade, all instruction was in
English, with teachers’ aides and other assistance for
language-minority children. Special programs,
including English as a Second Language and special
tutoring, were available to all children, with special
emphasis on students who moved into the school
district after the third grade. 648 F.2d at 1005.
The plaintiffs asserted that the Raymondville
program did not comply with the requirements of
Title VI, the EEOA, and the Lau Guidelines. 648 F.2d
at 1006. “Specifically, plaintiffs contend that the
articulated goal of the Raymondville program to teach
limited English speaking children to read and write in
both English and Spanish at grade level is improper
because it overemphasizes the development of
English language skills to the detriment of the child's
overall cognitive development.” Id.
The Fifth Circuit first swiftly disposed of the
Title VI and Lau Guidelines questions.
Whatever the deficiencies of the RISD's
program of language remediation may be, we
do not think it can seriously be asserted that
this program was intended or designed to
discriminate against Mexican-American
students in the district. Thus, we think it
cannot be said that the arguable inadequacies
of the program render it violative of Title VI.
648 F.2d at 1007.
The Fifth Circuit then turned to the EEFOA
question:
We think Congress’ use of the less specific
term, “appropriate action,” rather’ than
“bilingual education,” indicates that Congress
intended to leave state and local educational
authorities a substantial amount of latitude in
24
choosing the programs and techniques they
would use to meet their obligations under the
EEOA. However, by including an obligation to
address the problem of language barriers in the
EEOA and granting limited English speaking
students a private right of action to enforce
that obligation in § 1706, Congress also must
have intended to insure that schools made a
genuine and good faith effort, consistent with
local circumstances and resources, to remedy
the language deficiencies of their students and
deliberately placed on federal courts the
difficult responsibility of determining whether
that obligation had been met.
648 F.2d at 1009.
The Fifth Circuit then formulated a three-part
test which has guided reviews of bilingual education
programs since its formulation:
In a case such as this one in which the
appropriateness of a particular school system's
language remediation program is challenged
under § 1703(f, we _ believe that the
responsibility of the federal court is threefoid.
First, the court must examine carefully the
evidence the record contains concerning the
soundness of the educational theory or
principles upon which the challenged program
is based... .
The court’s second inquiry would be
whether the programs and practices actually
used by a school system are reasonably
calculated to implement effectively the
educational theory adopted by the school. We
do not believe that it may fairly be said that a
school system is taking appropriate action to
25
remedy language barriers if, despite the
adoption of a promising theory, the system
fails to follow through with practices, resources
and personnel necessary to transform the
theory into reality.
Finally, a determination that a_ school
system has adopted a sound program for
alleviating the language barriers impeding the
educational progress of some of its students
and made bona fide efforts to make the
program work does not necessarily end the
court’s inquiry into the appropriateness of the
system's actions. If a school’s program,
although premised on a legitimate educational
theory and implemented through the use of
adequate techniques, fails, after being
employed for a period of time sufficient to give
the plan a legitimate trial, to produce results
indicating that the language barriers
confronting students are actually being
overcome, that program may, at that point, no
longer constitute appropriate action as far as
that school is concerned. We do not believe
Congress intended that under § 1703(f) a
school would be free to persist in a policy
which, although it may _ have been
“appropriate” when adopted, in the sense that
there were sound expectations for success and
bona fide efforts to make the program work,
has, in practice, proved a failure.
648 F.2d at 1009-10.
The Castaneda test continues to be the
benchmark for evaluating challenges to programs to
aid English Language Learners. The Fifth Circuit
later applied the Castaneda test to a _ statewide
26
system. United States v. Texas, 680 F.2d 356, 371 (5th
Cir. 1982). The Seventh Circuit similarly applied the
Castaneda test. Gomez uv. Illinois State Bd. Of
Education, 811 F.2d 1030, 1041-42 (7th Cir. 1987)
(EEOA applies to state as well as local agencies).
The plaintiffs and the court below used the
Castaneda test in this case. “Flores alleged,
consistent with Castaneda step two, that Arizona had
‘failed to provide financial and other resources
necessary for adequate implementation’ of its ELL
programs.” 516 F.3d at 1146.
C. The Decision Below Distorts and
Misapplies the Castaneda Test:
The lower court’s opinion musquotes and
misunderstands the Castaneda test. Because the
court below apparently did not understand the Fifth
Circuit’s careful analysis in Castaneda, its additions
converted a “good faith” test into a numerical
“resources” test, placing the court in the position of
dictating appropriations, rather than evaluating a
program.
The court below described the Castaneda test
as:
The Castaneda framework is_ three-fold:
First, courts must be satisfied that the “school
system is purs[uing] a program informed by an
educational theory recognized as sound by
some experts in the field or, at least, deemed a
legitimate experimental strategy.” Castaneda,
648 F.2d at 1009. Second, “the programs and
practices actually used by a school system
[must be] reasonably calculated to implement
effectively the educational theory adopted by
27
the school.” Jd., at 1010. There must, in other
words, be sufficient “practices, resources and
personnel ... to transform the theory into
reality.” Id. Third, even if theory is sound and
resources are adequate, the program must be
borne out by practical results. Jd.
516 F.3d at 1146 (emphases added).
The highlighted language is the Ninth Circuit’s
distortion of the Castaneda test. An analysis of the
Arizona programs under the three Castaneda prongs
illustrates the effect of this switch from substantive
analysis to analysis of “process:”
1. THEORY: Proposition 203 Adopted a
Recognized Educational Theory.
The first Castaneda test is whether the
program uses a _ recognized educational theory.
Arizona’s Proposition 203 uses a theory proven
successful in California, and very similar to that
adopted two years later by Congress in Title III of the
NCLB Act. No one in this case disputes that
Arizona’s educational theory is recognized.
2. “GOOD FAITH” IMPLEMEN-
TATION: Arizona Has Implemented the
Program Appropriately.
This second Castaneda prong is the crux of the
plaintiffs’ challenge in this case. 516 F.3d at 1146.
The Ninth Circuit has converted the second prong of
the Castaneda test from one _ focused’ on
implementation of theory into a resources test. “ELL
students need extra help and that costs extra money.”
516 F.3d at 1169.
The Ninth Circuit, using its theory that
“challenges have become greater” under Arizona’s
28
SEI program, 516 F.3d at 1169, didn’t recognize the
differences between the old bilingual education
program and more modern approaches. The Ninth
Circuit excerpted the second prong of the Castaneda
test to look to specific dollar inputs rather than good
faith efforts:
Second, “the programs and _ practices
actually used by a school system [must be]
reasonably calculated to implement effectively
the educational theory adopted by the school.”
Id., at 1010. There must, in other words, be
sufficient “practices, resources and personnel ...
to transform the theory into reality.”
Id., emphasis added.
By removing words, the Ninth Circuit
converted the second prong into a test of whether the
theory could become “reality.” This is a results test.
The only way to keep the lower court’s version of the
second prong from being a superfluous results test
would be if it were construed solely as an “inputs”
test, similar to the old Lau (Guidelines. Yet the
Castaneda court, as noted above, summarily rejected
the Lau Guidelines as a measure to judge compliance
with the EEOA. 648 F.2d at 1007.
The futility of the Ninth Circuit’s “resources”
test can be seen in a comparison of the Nogales
schools and those of “the more affluent Scottsdale
Unified School District [which] spends more than
twice as much money as does [Nogales] for its ELL
students, yet Scottsdale’s ELL 10th graders score
worse on Arizona’s AIMS academic achievement tests
than [Nogales’s}) ELL 10th graders.” Brief of
Petitioner Superintendent (“Superintendent’s Br.”)
at 43 n. 19. Adding more resources is not an adequate
measure of implementation or of results.
29
The second prong is not, in fact, a resources
test. It is a balancing test of implementation. What
Castaneda actually said was that:
Congress also must have intended to insure
that schools made a genuine and good faith
effort, consistent with local circumstances and
resources, to remedy the language deficiencies
of their students. .
The court’s second inquiry would be
whether the programs and practices actually
used by a _ school system are reasonably
calculated to implement effectively the
educational theory adopted by the school.
648 F.2d at 1009 (emphasis added).
Arizona has implemented its Structure English
Immersion program appropriately. It has passed
legislation to implement the voters’ decision. 516 F.3d
at 1167. Nogales schools score in the top ranks of
Arizona schools. Pet. App., at 363a-366a. Even the
Ninth Circuit notes that Arizona has changed its
programs to meet the needs of its English Language
Learners in these new programs. “[MJany of these
specific problems have been solved by better
management in NUSD, and because school funding
has generally increased... .” 516 F.3d at 1168.
The Castaneda test is one of “genuine and
good faith effort.” The Ninth Circuit is familiar with
“good faith” tests regarding the implementation of
English Language Learner programs. California
Teachers Ass’n, 271 F.3d at 1154-55 (upholding
California’s Prop. 227, in part, by looking at a variety
of “good faith” tests).
The Ninth Circuit did not use its own “good
faith” test, or the Castaneda “good faith
implementation” test in this case. Perhaps the Ninth
30
Circuit believed that it could evaluate and disregard
competing resource claims to satisfy the requirements
of the EEOA, but having both ignored the evolution
in education theory and practice and made a flawed
assumption about the resources needed to implement
English immersion programs, the Ninth Circuit was
in no position to judge whether Arizona’s effort was
“genuine” or in “good faith.” Thus, it had to look
solely to a dollar-input test.
The difficulty with the “process mentality”
below was predicted by the Fifth and Seventh
Circuits:
Among these are such questions as how
broad a power of “de novo” review and revision
may be exercised by a district court over
language barrier programs, consistent with the
rule that Congress cannot invest Article III
courts with jurisdiction to “exercise functions
which are essentially legislative or
administrative.”
Castaneda by Castaneda v. Pickard, 680 F.2d 456, 471
n. 24 (5th Cir. 1986); Gomez, 811 F.2d at 1041 (“we
must be careful not to substitute our suppositions for
the expert knowledge of educators or our judgment
for the educational and political decisions reserved to
the state and local agencies”’).
Demands for funds are endless. Schools can
always find a reason to “need” more funds.
Determining appropriations levels by balancing these
competing demands is one of the “quintessentially
legislative” functions. Sorenson v. Secretary of
Treasury of U.S., 475 U.S. 851, 865 (1986).
Because it failed to understand the nature of
the second prong of the Castaneda test, the decision
below both inappropriately muddied the test itself
31
and unnecessarily injected itself into legislative
resources decisions. The Castaneda test was carefully
drawn to avoid separation of powers issues while
protecting English Language Learners; the Ninth
Circuit’s ambiguous rewrite was not.
3. RESULTS: Arizona’s SEI Program is
Achieving Results Better Than Its Prior
Bilingual Education Program.
As shown by the long evolution of English
Language Learner teaching, the third prong of the
Castaneda test is perhaps the most important: does
the program get results?
The EEOA does not establish measures for
determining results. Title III of the No Child Left
Behind Act does: “to help ensure that children who
are limited English proficient, including immigrant
children and youth, attain English proficiency,
develop high levels of academic attainment in
English, and meet the same challenging State
academic content and student academic achievement
standards as all children are expected to meet.” 20
U.S.C. § 6812(1).
Arizona does seem to be getting results.
Arizona’s ELLs who have successfully completed
Arizona’s new “Structured English Immersion”
program perform better on tests of mathematics, and
English language writing and reading skills than do
native-English-speaking children. Accountability
Division, Research and Evaluation Section, Arizona
Dept. of Education, “State Report Cards,” Dec. 29,
2008.
For example, in Fiscal Year 2007, 82% of ELLs
in their second year of classification as English
Proficient (“CFEP2”) passed their Arizona
32
Instrument to Measure Standards (“AIMS”) test in
writing in English, compared to only 78% of native
English speakers. Jd. 71% of the CFEP2 students
passed their AIMS math test, compared to 68% of
native English speakers. Jd. In Fiscal Year 2008, the
achievement figures were comparable between ELLs
and native speakers; for example, the AIMS pass rate
for CFEP2 students was 72% in math, compared to
74% for native English speakers. Jd.
The Ninth Circuit dismissed the evidence of
success, putting these “encouraging” results in a
footnote, 516 F.3d at 1170 n. 38, and claiming that
“the record does not demonstrate that NUSD is
succeeding in rapidly and permanently reclassifying
ELL students, nor on the time it takes to reclassify
students.” 516 F.3d at 1170.
Instead, the lower court simply decried a lack
of resources:
A district in which the majority of ELL
tenth graders fail to meet state achievement
standards while the majority of native English
speakers pass is not one whose performance
demonstrates that the state is adequately
funding ELL programs and so warrants relief
from judgment.
516 F.3d at 1170 (emphasis in the original). Given the
undisputed evidence that graduates of the program
do as well or better than the “majority of English
speakers”, comparing those who haven’t completed
the program is premature at best. Otherwise, the
lower court would be demanding instantaneous
results.
Leaving aside the comparison § between
different groups, this conclusion doesn’t seem to
comport with the record. Pet. App., at 363a-366a
33
(Nogales Unified School District schools rank high on
Arizona test scores); Brief for Petitioners
(“Legislature’s Br.”) at 22, 45-46 (describing new
prog:ams and resources in Nogales schools), 48
(describing ELL performance on tests).
Again, the Ninth Circuit’s position may be
dictated by its misunderstanding and
mischaracterization of the Castaneda test. The
opinion below described the third prong as: “Third,
even if theory is sound and resources are adequate,
the program must be borne out by practical results.”
516 F.3d at 1146.
This is not an accurate description, as it
substitutes “resources are adequate” for what the
Castaneda test actually measures:
Finally, a determination that a_ school
system has adopted a sound program for
alleviating the language barriers impeding the
educational progress of some of its students
and made bona fide efforts to make the
program work does not necessarily end the
court’s inquiry into the appropriateness of the
system's actions. If a school’s program,
although premised on a legitimate educational
theory and implemented through the use of
adequate techniques, fails, after being
employed for a period of time sufficient to give
the plan a legitimate trial, to produce results
indicating that the language barriers
confronting students are actually being
overcome, that program may, at that point, no
longer constitute appropriate action as far as
that school is concerned.
648 F.2d at 1010 (emphasis added).
34
The Castaneda results test does not include the
word “resources,” nor does it measure whether
“resources are adequate.” Instead it measures
whether Arizona has “made bona fide efforts to make
the program work,” and whether, after a reasonable
period of time, the program was “implemented
through the use of adequate techniques.” Not
adequate “resources,” but “adequate techniques.”
And the essential test, described twice in one
paragraph, is whether Arizona had made “bona fide
efforts to make the program work.”
The last sentence of the Castaneda third prong
was not mentioned by the Ninth Circuit: “We do not
believe Congress intended that under § 1703(f) a
school would be free to persist in a policy which,
although it may have been ‘appropriate’ when
adopted, in the sense that there were sound
expectations for success and bona fide efforts to make
the program work, has, in practice, proved a failure.”
648 F.2d at 1010 (emphasis added).
The Castaneda court sought “bona fide efforts”
to ensure that children who are limited English
proficient, including immigrant children and youth,
attain English proficiency, develop high levels of
academic attainment in English, and meet the same
challenging State academic content and student
academic achievement standards as all children are
expected to meet. This is the same standard set by
the NCLB. This is also what language-minority
parents have sought for many years, and, by the
available evidence, this is what Arizona has
apparently provided.
The lower court’s failure to understand and
apply the Castaneda test threatens to confuse schools
and parents about the requirements for teaching
35
English Language Learners, leading to the same sort
of pedagogical morass that followed the Lau
Guidelines. This Court should not permit the decision
below to undermine the needs of English Language
Learners.
Il. THE DECISION BELOW DISTORTS AND
MISAPPLIES THE RELATIONSHIP BETWEEN
THE EEOA AND THE NCLB.
The decision below. similarly failed to
understand the evolution of federal policy from the
EEOA to Title III of the NCLB. The EEOA required
“appropriate means to overcome language barriers.”
20 U.S.C. § 1703(f). The later-passed Title III of the
NCLB sets specific federal policy for what “means”
are “appropriate” enough to deserve federal funding.
The Castaneda test is the long-standing
measure of whether the EEOA is being satisfied. If
the three goals of the NCLB are the same as the three
prongs of the Castaneda test, then satisfying the
NCLB means satisfying the EEOA. If that is true, the
Ninth Circuit’s opinion is fatally flawed.
A. The Goals of the EEOA and Title LII of
the NCLB Are The Same:
The Castaneda test requires, as shown supra, a
recognized theory. appropriate implementation, and
measurable results:
We also laid down a three-step test for
compliance with section 1703(f): Is the
program based on an educational theory
recognized as sound or at least as a legitimate
experimental strategy by some of the experts
in the field? Is it reasonably calculated to
36
implement that theory? Has it, after being
used for a time sufficient to afford it a
legitimate trial, produced satisfactory results?
United States v. Texas, 680 F.2d at 371.
Title III of the No Child Left Behind Act sets
three goals, which are essentially the same as the
three prongs of the Castaneda test:
* scientifically-based theory;
= adequate implementation, including teacher
development; and
* measurable results.
School districts must use Title III funds to
provide high-quality language instruction
programs that are based on scientifically based
research, and that have demonstrated thai
they are effective in increasing English
proficiency and student achievement.
Districts are required to provide high-
quality professional development to classroom
teachers, principals, administrators, and other
school or community-based organizational
personnel in order to improve the instruction
and assessment of limited English proficient
students.
Districts are held accountable for making
adequate yearly progress as described in Title I
and meeting all annual achievement objectives.
NCLB Desktop Reference, supra.
B. Title III Is An Individually-Focused
Civil Rights Law:
The court below dismissed the requirements of
Title III as only applicable to schools, and not
children:
37
The EEOA is just such a rights-enforcing
law. It requires states “to ensure that needs of
students with limited English language
proficiency are addressed,” Idaho Migrant
Council v. Bd. Of Educ., 647 F.2d 69, 71 (9th
Circ. 1981), by requiring them to remove
barriers to equal participation in educational
programs now rather than later, and it
provides students with a right of action to
enable them to enforce their rights, see, 20
U.S.C. § 1706 . . . The EEOA’s concerns, in
other words, lie fundamentally with the
current rights of individual students, while
NCLB seeks gradually to improve their
schools.
516 F.3d at 1173.
The Ninth Circuit has it backwards. To a
student trapped in an ineffective bilingual education
program, like Rita Montero’s son, Camilo, the NCLB
is a civil rights law, “requir[ing] states ‘to ensure that
needs of students with limited English language
proficiency are addressed,’ .. . by requiring them to
remove barriers to equal participation in educational
programs now rather than later.” 516 F.3d at 1173.
The sponsors of Title III explicitly thought
their changes would aid individual students in
achieving equality in American society:
Our school system should not isolate kids
and not allow them to learn English. So we
change the bilingual program so now the stress
in bilingual education is going to be teaching
kids to learn English so that they can compete
in our world, compete in America, and have a
shot at the American opportunity.
38
147 Cong. Rec. $13328 (Dec. 17, 2001)(Statement of
Sen. Gregg).
In addition, Title III focuses on individual
students. In March 2006, Irene Moreno, head of the
English Acquisition United for the Arizona
Department of Education described the four
strategies she believed accounted ffor’ the
demonstrated success of Nogales schools:
* small Structured English Immersion classes
that emphasized English language
development;
* intervention strategies to assist individual
students who needed special attention;
* tutoring before, during and after school; and
* software-based evaluation providing immediate
feedback on individual students’ needs.
Superintendent’s Br., at 26. These strategies, which
satisfy Title III, are focused on the “current rights of
individual students” rather than “seekling| to
gradually improve their schools.” 516 F.3d at 1173.
C. The Ninth Circuit’s Approach Could
Harm, Not Help, Children:
The Ninth Circuit overlooked one major
purpose of Title III: to insure accountability on the
basis of measurable results. One reason for this
emphasis is that, under the old bilingual education
programs, children were kept in these ineffective
programs far longer than necessary. See, e.g., H.R.
Rep. 107-65, Pt. 1, at 277.
If implemented, the Ninth Circuit’s “input”
approach, measured by dollars spent per English
Language Learner in these programs, could lead to
the old result. Schools would have an incentive to
39
keep students in the programs longer than necessary,
in order to attract more education funding. That
would violate the purposes of both the EEOA and
Title III of the NCLB: to teach children English and
move them into parity with other students as quickly
as possible.
Ironically, this perverse incentive to retain
ELLs in special programs longer would run counter
to the Ninth Circuit’s principal criticism, noted
above, that Arizona’s programs do not “reclassify”
students quickly enough. 516 F.3d at 1170 n. 38. Yet,
history suggests that this is the likely result of the
Ninth Circuit’s own “put more money in” approach.
The Ninth Circuit’s failure to understand the
evolution of ELL education led it to a failure of
analysis. This Court must understand the evolution,
and the consequences, to see how these many
disparate factors have come together to produce a
success, not a failure, in Arizona.
CONCLUSION
For the foregoing reasons, Amici Curiae
respectfully request this Court to reverse the decision
below.
BARNABY W. ZALL
Counsel of Record for Amici Curiae
Weinberg & Jacobs, LLP
11300 Rockville Pike, #1200
Rockville, MD 20852
(301) 231-6943
Nos. 08-294 and No. 08-289
IN THE
Suprene Court of the United States
THOMAS C. HORNE, SUPERINTENDENT OF PUBLIC
INSTRUCTION OF THE STATE OF ARIZONA,
Petitioner
and
SPEAKER OF THE ARIZONA HOUSE OF
REPRESENTATIVES AND PRESIDENT OF THE ARIZONA
SENATE,
Petitioners
Ve
MIRIAM FLORES, INDIVIDUALLY AND AS PARENT OF
MIRIAM FLORES, MINOR CHILD; ROSA RZESLAWSKI,
INDIVIDUALLY AND AS PARENT OF MARIO
RZESLAWSKI, MINOR CHILD; STATE OF ARIZONA; AND
MEMBERS OF THE ARIZONA STATE BOARD OF
EDUCATION IN THEIR OFFICIAL CAPACITIES
Respondents.
On Writ of Certiorari to the United States Court of
Appeals for the Ninth Circuit
AMICI CURIAE BRIEF OF ASIAN AMERICAN JUSTICE
CENTER, NATIONAL COUNCIL OF LA RAZA, £'7'AL., IN
SUPPORT OF RESPONDENTS
KAREN K. NARASAKI ALAN S. GILBERT
VINCENT A. ENG Counsel of Record
MEREDITH S.H. HIGASHI RICHARD M. ZUCKEKMAN
ASIAN AMERICAN KATHERINE J. EVANS*
JUSTICE CENTER CHRISTOPHER H. LEE**
1140 Connecticut Ave., NW JONATHAN P. CHOCK*
Suite 1200 SONNENSCHEIN NATH &
Washington, DC 20036 ROSENTHAL. LLLP
(202) 296-2300 7800 Sears Tower
233 South Wacker Dr.
Chicago, IL 60606-6404
(312) 876-8000
* Admitted only in California
** Admitted onlv in Arizona
Counsel for Amici Curiae
|. 4dditional Amici listed on inside cover
WiILSON-EPES PRINTINGCO . INC — (202) 789-0096 - WasHinGTon DC 20001
ADDITIONAI. AMICI CURIAE
Asian American Institute
Asian Law Caucus
Asian Pacific American Legal Center of Southern
California
Asian Pacific American Legal Resource Center
Boat People SOS
California Rural Legal Assistance Foundation
Child Care Law Center
Coalition of California Welfare Rights Organizations
Empire Justice Center
Isabel Framer
The Fred T. Korematsu Center for Law and Equality
Hmong National Development, Inc.
Japanese American Citizens League
Legal Aid Association of California
National Korean American Service & Education
Consortium
Organization of Chinese Americans, Inc.
Sikh American Legal Defense and Education Fund
South Asian Americans Leading Together
Southeast Asia Resource Action Center
The Watsonville Law Center
TABLE OF CONTENTS
STATEMENT OF INTEREST OF AMICI CURIAE..1
SUMMARY OF ARGUMENT. ..................cccccscsssessseees 3
A. CONTINUED ENFORCEMENT OF THE EQUAL
EDUCATIONAL OPPORTUNITIES ACT IS CRITICAL
To GIVE ENGLISH LANGUAGE LEARNERS A FAIR
CORADECES TOE CUTER IIIT. ncnsccccccccccsccccccccccsccccscsece: 5
1. Equal Access To Public Education Is A
Fundamental Civil Right. .............00.0.......0..... 6
2. There Is Still A Wide Achievement Gap
Between ELL Students And Native English
ail heel dented daa hctasdeipe endaannes 8
a. Providing Educational Opportunities To
ELL Students Is A National Issue Not
Raémesbed TO A POW BORteG, .c..ccccccscscccccsccse: 8
b. Native English Speakers Continuc To
Outscore ELL Students On Tests............. Ss)
c. Effective ELL Programs Increase The
Number Of High School Graduates. ...... 11
3. Effective ELL Programs Address The Needs
Of The Changing Population of U.S. Schools.
B. EFFECTIVE ENGLISH LANGUAGE LEARNER
PROGRAMS THAT FOCUS ON ENGLISH
il
PROFICIENCY FOR STUDENTS ARE CRITICAL FOR
SUCCESSFUL IMMIGRANT INTEGRATION. ........... 14
1. English Proficiency Is Critical To Social,
Economic And Familial Integration. ........... 14
2. Learning English Is Most Effective When
Children Are Taught As Early As Possible.
echdeiiindineiieaaniiinh dapiaieesupadduitaiamandiiiabadedabaeamaineniniains 15
3. Effective ELL Programs Benefit Society As
SEE Ea OES ATO ee ATES EC at a aC 17
C. THE COURT SHOULD NOT CONSIDER
COMPLIANCE WITH THE NCLB EQUIVALENT TO
COMPLIANCE WITH THE EEOA......0000.0.0o00oo.0.... 20
D. AMICI IN SUPPORT OF PETITIONER IMPROPERLY
SEEK TO REFRAME THIS CASE INTO A DEBATE
ABOUT EDUCATIONAL THEORY. ................0...00000- 26
EE stinionpnniteninnvunsineediniianvonieminnmennvnetet 30
EATEN inesortayccudsasensedvenisonvnnorinsniaioonenees 1-A
**-*
TABLE OF AUTHORITIES
FEDERAL CASES
Alliance for Children v. City of Detroit
Public Schools, 475 F.Supp.2d 655
I eeetoaseiiinilinks 21
Brown v. Board of Education,
Be i I GID cecccitrncetivecussennvcdenneaiececsexs 6
Flores v. Arizona, 516 F.3d 1140
re nn. . cenmsesepenees 17, 26, 27
Fresh Start Academy v. Toledo Board
of Education, 363 F.Supp.2d. 910
I 21
Gomez v. Illinois State Bd. of Education,
811 F.2d 1030 (7th Cir. 1987)...................... 21
Lau v. Nichols, 414 U.S. 563 (1974)...... 3, 6, 7
Morales v. Shannon, 516 F.2d 411
I I, BOF ovncceccccceevncavcusueccevesevscccsccessante 21
FEDERAL STATUTES
20 U.S.C. §§ 1701, et seg. (1974) ......... passim
ee Ce ee ee 7,21
oe EE a ee 20, 21
20 U.S.C. § 2000d, et seg. (1964) ...0.000000.... a
NN MI Sethi cneiici ices ewninacidadedewnvened’ 25
Page(s)
20 U.S.C. § 7907(a)
20 U.S.C. §§ 7844.
COREE ETT Tee eee ee
OTHER AUTHORITIES
Bureau of Labor Statistics, Employment
Projections: Pays to Play
EE eee 18
California Department of Education News
Release #08-117, Sept. 9, 2008, tbl.1.....12, 19
Clive R. Belfield and Henry M. Levin, The
Return on Investment for Improving
Calfornia’s High School Graduation Rate
California Dropout Research Project
ee 19
Dr. James Thomas Tucker, Waiting Times for
Adult ESL Classes and the Impact on English
Learners, The National Association of Latino
Elected and Appointed Officials Education
eT csauuuudenvensons 16
Hoyt Bleakley and Aimee Chin, What Holds
Back the Second Generation? The Intergenerational
Transmission of Language Human Capital Among
Immigrants, The Center for Comparative
Immigration Studies, University of California,
IO ccs cccecesncsevenccsessecens 15
vi
Jason Amos, Dropouts, Diplomas, and Dollars:
U.S. High Schools and the Nation’s Economy,
Alliance for Excellent Education
TE SOS SERERSEDISRDARENY Sea aise Poneman e em 19
Jeanne Batalova, Michael Fix, Julie Murray,
Measures of Change-The Demography and
Literacy of Adolescent English Learners,
Carnegie Corporation of New York
SI ckacisdncsdsuienihcacipikionciiiabapiclndl 9, 13, 14, 15
Kenji Hakuta, Yuko Goto Butler, and Daria
Witt, How Long Does it Take English Learners
to Attain Proficiency? The University of
California Linguistic Minority Research
Re ca eS eee 16
M.M. McMillen, P. Kaufman, & S. Klein,
Dropout rates in the United States:
Mellissa Lazarin, A Race Against the Clock:
The Value of Expanded Learning Time for
English Language Learners, Center for
American Progress (Dec. 2008) ....... 10, 11, 18
Michael Fix and Margie McHugh,
Pre K-12 Education of Immigrants and
English Language Learners, Migration
PU TORII Ga ieiseetcicnasencseneriossvsnvcnesesel
National Association for the Education of
Young Children (NAEYC), Screening and
Assessment of Young English-Language
Learners, Supplement to the NAEYC Position
Statement on Early Childhood Curriculum,
Vii
Assessment, and Program Evaluation
ee ——___«CRSER EEE Sete ee ea Oe pt ee 16
National Clearinghouse for English
Language Acquisition and Language
Instruction Educational Programs
The Growing Number of Limited English
Proficient Students: 1995/96-2005/06
REET IETS NCE Se a EEN I Ee 13, 14
New York State Board of Regents,
Graduation Rates: Students Who Started
9th Grade in 2001, 2002 and 2003 and
2006-07 Regents Examination Results
ee a essesiinndkion 12, 18, 19
Richard Fry, £xplaining the English
Language Learner Achievement Gap,
Pew Research Center (June 26, 2008)....... 8, 9
U.S. Census Bureau, Larnings Gap
Highlighted by Census Bureau Data on
Educational Attainment (2007) ..............0006. 18
U.S. Census Bureau, Language Spoken
at Home for the Population 5 Years
and Over, 2006 American Community
a 5
United States Government Accountability
Office, “No Child Left Behind Act: Assistance
from Education Could Help States Better Measure
Progress of Students with Limited English
Proficiency,” GAO-06-815, at 13
(July 26, 2006)...... RTL E Dee Se 11, 23, 24, 25
vill
U.S. Department of Education, Fact Sheet:
NCLB Provisions Ensure Flexibility and
Accountability for Limited English Proficient
Students, (last modified Feb. 19, 2004)....... 23
William Myhill, The State of Public Education
and the Needs of English Language Learners
in the Era of “No Child Lett Behind,” 8
J. Gender Race & Just. 393, 435-436
REET STR CRN CP SOv ee SOOT Pet rN ae 10
STATEMENT OF INTEREST OF AMICI
CURIAE!
Asian American Justice Center (““AAJC”)
AAJC is a national non-profit, non-partisan
organization whose mission is to advance the human
and civil rights of Asian Americans. AAJC focuses
its work to promote civic engagement, forge strong
and safe communities, and create an inclusive society
on a local, regional, and national level. Collectively,
AAJC and its Affiliates, the Asian American
Institute, Asian Law Caucus, and the Asian Pacific
American Legal Center of Southern California, have
over 50 years of experience in providing legal, public
policy, advocacy, and community education. A
nationally recognized voice on immigration and
immigrants’ rights on behalf of Asian Americans,
AAJC has long spearheaded advocacy and education
in the community on matters affecting immigrant
individuals and families. In particular, AAJC’s
Adult English Language Learning Program strives to
shape legislative and public education policies to
encourage support of English language acquisition
and immigrant integration.
National Council of La Raza (“NCLR”)
NCLR is a private, non-profit, non-partisan
organization established in 1968 to reduce poverty
and discrimination and improve life opportunities for
Hispanic Americans. NCLR works toward this goal
through two primary, complementary approaches:
' No counsel for a party authored this brief in whole or in part.
and no counsel or party made a monetary contribution intended
to fund the preparation or submission of this brief. No person
other than amici: curiae, its members, or its counsel made a
monetary contribution to its preparation or submission. The
parties written consents to the filing of this bnef have been
tiled with the Clerk of the Court.
2
capacity-building assistance to support § and
strengthen Hispanic community-based organizations
and applied research, policy analysis, and advocacy.
NCLR, which has a long history of working on behalf
of English Language Learner (“ELL”) students,
recognizes that enforcement of the Equal
Educational Opportunities Act is critical to the
education of these students. Because 39 percent of
Hispanic students are ELL, NCLR believes that
denying educational opportunities to ELL students
will have a negative effect on the educational
outcomes of a large segment of the Hispanic student
population.
Joining AAJC and NCLR as amici curiae in this
brief are public interest, national advocacy, civil
rights, and legal services organizations whose
members or constituencies are affected on a daily
basis by their ability to access effective ELL
programs. ‘The statements of interest for these
additional amici are included in Appendix A.
3
SUMMARY OF ARGUMENT
The population of students in need of English
language instruction continues to grow, state by
state and nationwide. It is undisputed that English
Language Learners (“ELL”) who are provided with
appropriate English instruction are better equipped
to become productive members of society, by almost
any measure. They are more likely to succeed
academically, obtain a high school diploma, and
facilitate the integration into the broader society of
their families and communities. Despite these
acknowledged benviits of effective English language
instruction, the achievement gap between ELL
students and their native English-speaking peers
continues to grow.
The ability of ELL students to participate equally
in a state’s school system is a civil right, see Lau v.
Nichols, 414 U.S. 563 (1974), and the Equal
Educational Opportunities Act (“‘“EEOA”) provides an
express remedy for an individual student whose
rights are being violated by inadequate English
language instruction. The Ninth Circuit properly
affirmed the district court’s holding that Arizona’s
arbitrary and capricious underfunding of programs
for ELL students continued to violate the EEOA.
While there are many distinctions between the
equality-based structure of the EEOA and the
gradual, remedial framework of the No Child Left
Behind Act (“NCLB”), one important difference is
that the EEOA, a civil rights statute, provides
individual! students the right to rectify insufficient
English language instruction through an express
private right of action. If a state’s compliance with
4
the NCLB were found to constitute compliance with
the EEOA, the right to require a state to take
appropriate action to ensure equal education for all
might be lost. The Ninth Circuit properly held that
the NCLB does not supersede the EEOA, and thus
there was no change in law that justified providing
relief from the district court’s judgment.
Certain amici in support of Petitioners insist that
the court below was influenced by a preference for
bilingual instruction over English-immersion
instruction. There is nothing in the Ninth Circuit’s
opinion that would so indicate. The Court of Appeals
expressed no preference for bilingual education,
clearly acknowledging that determining how to
educate ELL students is within a state’s discretion.
Such attempts to reframe the issues before this
Court should be disregarded.
5
ARGUMENT
A. CONTINUED ENFORCEMENT OF THE
EQUAL EDUCATIONAL OPPORTUNITIES
AcT IS CRITICAL TO GIVE ENGLISH
LANGUAGE LEARNERS A FAIR CHANCE IN
OUR SOCIETY.
In the 2005-06 school year, there were more than
5 million public school students with limited English
proficiency in the United States (“English Language
Learners” or “ELL”)2—today, over three-quarters of
ELL elementary school students and over one-half of
ELL secondary school students are native-born
American citizens. This reflects our multicultural society.
Over 54 million people living in the United States
speak a language other than English at home,* and
nearly 3 million children between ages 5 and 17 live
in households that are deemed to be “linguistically
isolated,” meaning that no member of the household
over age 14 speaks English very well.’ Over 10.8
2 NATIONAL CLEARINGHOUSE FOR ENGLISH LANGUAGE
ACQUISITION AND LANGUAGE INSTRUCTION EDUCATIONAL
PROGRAMS (NCELA), The Growing Number of Limited English
Proficient Students: 1995/96-2005/06 (2007), available at
http://www.ncela.gwu.edu/policy/states/reports/statedata/2005L
EP/GrowingLEP_0506.pdf.
3 Michael Fix and Margie McHugh, Pre A-/2 Education of
Immigrants and English Language Learners. Migration Policy
Institute, at 2 (2008), avaz/able at change.gov/page/-
/open%20government/yourseatatthetable/20081217_mpi2. pdf,
*U.S. CENSUS BUREAU, Language Spoken at Home for the
Population 5 Years and Over, 2006 American Community
Survey, tbl. 52 (2006), available at
http://www.census.gov/compendia/statab/tables/09s0052.pdf.
> US. CENSUS BUREAU, Language Spoken at Home for the
Population 5 Years and Over, 2006 American Community
6
million children between ages 5 and 17 (20.3% of the
population for this age group) speak a language other
than English at home, and over 2.8 million of those
children speak English less than “very well.”6
The large number of children with limited
English proficiency presents an enormous challenge
to our school system. Even with the major advances
in equal education rights in the 55 years since Brown
v. Board of Education, 347 U.S. 483 (1954),
inequality persists in America’s public school system
between children who have learned English as their
primary language and children who lack English
proficiency.
Continued enforcement of the Equal Educational
Opportunities Act (““EEOA”) is critical to overcome
this inequality and give English Language Learners
a fair chance in our socicty.
1. Equal Access To Public Education Is A
Fundamental Civil Right.
Since Brown, equal access to education has been
identified as an imperative within America’s public
school systems. While legislatures and executives at
both the state and federal level have recognized the
importance of equal educational opportunity, the
courts have had to play a continuing role to ensure
that progress is made.
In Lau v. Nichols, 114 U.S. 563 (1974), this Court
upheld claims made under the Civil Rights Act of
Survey, tbl.227 (2006), avarlable at
http’//www census.gov/com pendia/statab/tables/09s0227 pdf.
6 Jd
7
1964 by Chinese-American students with limited
English proficiency who were being denied access to
educational opportunities:
[T]here is no equality of treatment merely by
providing students with the same facilities,
textbooks, teachers, and curriculum: for
students who do not understand English are
effectively foreclosed from any meaningful
education ... [blasic English skills are at the
very core of what public schools teach.
Imposition of a requirement that, before a
child can effectively participate in the
educational program, he must already have
acquired those basic skills is to make a
mockery of public education.
Id. at 566. This Court recognized in Lau that a
student’s primary language is so closely related to
his or her national origin that language-based
discrimination is effectively a proxy for national
origin discrimination. /d. at 568.
In the same year as the Lau decision, Congress
enacted the Equal] Educational Opportunities Act of
1974. The EEOA prohibits discrimination against
students, faculty and staff in public schools and
requires that state governments take action to
overcome barriers to students’ equal participation in
public schools. At issue in this case is section 1703(f
of the EEOA, which prohibits States from denying
“equal educational opportunity to an individual on
account of his or her race, color, sex or national
origin by ... the failure [of] an educational agency to
take appropriate action to overcome’ language
barriers that impede equal participation by its
8
students in its instructional programs.” 20 U.S.C. §
1703.
Since its passage, the EEOA has_ been
instrumental in improving educational opportunities
for students who are not native English speakers.
However, while the EEOA requires states to take
appropriate action to overcome language barriers,
states do not always do so of their own accord.
2. There Is Still A Wide Achievement Gap
Between ELL Students And Native English
Speakers.
Notwithstanding passage of the EEOA, an
achievement gap remains between ELL students and
their native-English-speaking peers.
a. Providing Educational Opportunities To
ELL Students Is A National Issue Not
Limited To A Few States.
While the populations of five states (Arizona,
California, Florida, New York and Texas) accounted
for about 70 percent of the nation’s ELL students in
the 2003-04 school year, ELL population growth
varies dramatically by state.’ States with a recent
influx of immigrants are experiencing much higher
increases in their ELL student population than
states that have heretofore had large ELL student
populations. For example, ELL enrollment between
1995 and 2005 increased 26 percent in California, a
state with a long history of receiving iramigrants:
? Richard Fry, £xp/aining the English Language Learner
Achievement Gap, Pew Research Center (June 26, 2008),
available at http://pewresearch org/pubs/882/english-language-
learner.
9
ELL enrollment during the same period expanded by
372 percent in North Carolina, a state only recently
experiencing sharp gains in its immigrant
population.’
b. Native English Speakers Continue To
Outscore ELL Students On Tests.
Assessment data from the states with the highest
populations of ELL students uniformly indicate that
ELL students are much less likely than other
students to score at or above proficient levels in
mathematics, reading, and language arts.?
Advancements in ELL educational programs
have done little to close the achievement gap
between ELL students and native English-speaking
students. In many subjects, this gap continues to
grow. The Stanford Achievement Test, 9t Edition
(the “Stanford 9”), provides for the assessment of
students in grades two through eleven every year in
reading, math and language (as well as other
subjects at targeted grade levels). In 1998, the
national percentile rank of the average ELL student
score on the Stanford 9 reading and language tests
was consistently 20 or more points lower than the
overall student body and 16 points lower in math and
spelling.‘° In social sciences, which is assessed in
% Jeanne Batalova. Michael Fix, Julie Murray, Aleasures of
Change’ The Demography and Literacy of Adolescent English
Learners, Carnegie Corporation of New York, at 12 (2007).
available at
http://www.migrationpolicy.org/pubs/Measures_of_Change.pdf
9 Fry, supra note 7.
'° While reading, language and math skills are tested in grades
2-11. Spelling is only assessed in grades 2-8.
10
grades nine through eleven, the average discrepancy
was 21.2 points.!!
The average achievement gap between ELL
students and all students increased notably between
1998 and 2002. The Stanford 9 results over this five
year period show that the gaps in reading, math and
language scores between ELL students and the
overall student body from grades 6°8 increased by
7.33, 8.33, and 5.67 percentage points respectively.
Older students followed a different trend.
Nationwide, only 30 percent of fourth-grade ELL
students are “at or above basic” in reading, compared
to 71 percent of native English speakers.'2 The gap
is slightly larger among eighth-graders. Similar
double-digit gaps are prevalent in math, though
slightly smaller among students in grade four.'* The
gaps remain relatively unchanged among high school
students where achievement levels decrease over the
entire student body."
'! See William Myhill, The State of Public Education and the
Needs of English Language Learners in the Era of “No Child
Lett Behind,”8 3. Gender Race & Just. 393, 435-436 (2004).
‘2 Mellissa Lazarin, A Race Against the Clock: The Value of
Expanded Learning Time for English Language Learners,
Center For American Progress, at 3 (Dec. 2008) avar/lable at
http://www.americanprogress.org/issues/20U8/12/pdf/ell.pdf.(citi
ng NATIONAL CENTER FOR EDUCATION STATISTICS, The Nation's
Report Card’ Reading 2007, NCES 2007-196 (U.S. Department
of Education, 2007)).
‘3 Jd. (cating NATIONAL CENTER FOR EDUCATION STATISTICS, The
Nation's Report Card: Mathematics 2007, NCES 2007-494 (U.S.
Department of Education, 2007)).
‘4 Jd. (citing NATIONAL CENTER FOR EDUCATION STATISTICS,
“The Nation’s Report Card: 12th-Grade Reading and
11
Similar results are found in the 2006 report on
the No Child Left Behind Act (“NCLB”), conducted by
the United States Government Accountability Office,
which found that students with lhmited English
proficiency were generally lagging behind the
general student population in academic proficiency. '®
On average, only about 1 in every 3 ELL students in
grades 4, 8 and 12 performed at or above the “basic”
level on the National Assessment for Education
Progress in reading, while nearly 3 out 4 non-ELL
students in those grades performed at or above the
“basic” level.'®
The large academic gap between ELL students
and native English speakers indicates that there is a
clear need to implement effective instructional
strategies for ELL students.
c. Effective ELL Programs Increase The
Number Of High School Graduates.
Low test scores are not the only evidence of the
negative impact of ineffective English language
instruction. States with large ELL student
populations report dismal results in high school
graduation rates for ELL students. In California, for
instance, 20 percent fewer ELL students passed the
mandatory exit exam required to obtain a high school
Mathematics 2005,” NCES 2007-468 (U.S. Department of
Education, 2007)).
'5 LINITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, “No
Child Left Behind Act‘ Assistance from Education Could Help
States Better Measure Progress of Students with Limited
English Proficiency.” GAO-06-815, at 13 (July 26, 2006).
available at http://www.gao.gov/new items/d06815.pdf.
‘6 Lazarin, supra note 12, at 4.
12
diploma than the overall student body.'7 New York
reports even worse results: Only 25-30 percent of
ELL students in New York graduate within four
years of entering high school, compared to 71 percent
of native English speakers. !®
While these numbers paint a bleak picture, it is
important to recognize that where English language
instruction is effective, clear gains have been
demonstrated. New York found that where its school
districts permitted an additional one to two years of
schooling, graduation rates for ELL students jumped
to 38-44 percent. Perhaps the most salient data in
support of effective English instruction is_ that
students who have attained English language
proficiency and exited out of the limited-English
proficient category have even higher graduation
rates than their native English speaking peers (74
percent).!9
3. Effective ELL Programs Address The
Needs Of The Changing Population of
U.S. Schools.
The growing achievement gap for ELL students,
and the failure of inadequate ELL education
programs to close the gap are of particular concern
‘7 California Department of Education News Release #08-117,
Sept. 9, 2008, tbl.1, available at
http://www.cde.ca.gov/nr/ne/yr08/yr08rel 117 .asp#tab1.
'S NEW YORK STATE BOARD OF REGENTS, Graduation Rates.
Students Who Started 9th Grade in 2001, 2002 and 2003 and
2006-07 Regents Examination Results, (Aug. 11, 2008),
available at
http://www.oms.nysed.gov/press/documents/Gradrates06-
O7TFINAL. ppt.
19 See rd.
13
given the rapid growth of ELL students in U.S.
public — schools. According to the National
Clearinghouse for English Language Instruction &
Language Educational Programs (the “NCELA”), the
total kindergarten through 12th grade (K-12)
enrollment in the United States grew less than 4
percent from the 1995-1996 school year to the 2005-
2006 school year. In contrast, enrollment of students
with limited English proficiency increased by over 57
percent during the same time period.2° With the
ELL student population expanding every year, it is
essential that public school systems include effective
ELL programs.
Providing adequate ELL programs is not only
needed for first-generation immigrants in the United
States. Up to 27 percent of all ELL adolescents are
second generation, and 30 percent are third
generation, meaning that many students educated
exclusively in U.S. schools (and whose parents were
educated exclusively in U.S. schools) still cannot
speak English well.2!_ These statistics demonstrate
that poorly managed and underfunded ELL
programs have failed students across multiple
generations.
If states are not held to the standards for equal
opportunity for ELL students the EEOA requires,
the achievement gap will continue to widen as the
ELL population continues to grow. Such an increase
in inequality is precisely what the EEOA was
enacted to prevent.
“9 NCELA, supra note 2.
“1 Batalova, Fix, Murray, supra note 8, at 13.
14
B. EFFECTIVE ENGLISH LANGUAGE LEARNER
PROGRAMS THAT FOCUS ON ENGLISH
PROFICIENCY FOR STUDENTS ARE
CRITICAL FOR SUCCESSFUL IMMIGRANT
INTEGRATION.
For immigrants in the United States, proficiency
in the English language is a necessary condition for
naturalization, effective participation in civic
engagement activities, economic self-sufficiency, and
successful integration in society. A key component of
implementing and effectuating English language
learning and integration is dedicating resources and
efforts to improving educational opportunities and
programs for ELL students. Effective ELL programs
that focus on helping students develop English
language proficiency, as well as the necessary
academic skills in other subjects that are taught in
English, are critical for helping ELL students and
their families become more active, productive and
integrated in society.
1. English Proficiency Is Critical To Social,
Economic And Familial Integration.
As the fastest growing segment of the student
population in the United States,?? the five mullion-
plus limited English proficient students in the
United States?" increasingly require effective ELL
programs in place, to provide ELL students with
opportunities to develop both English language
proficiency and other academic skills. Students who
develop English language proficiency as children will
have greater opportunities when adults to
‘2 Batalova, Fix, Murray. supra note &, at 12
23 NCELA., supra note 2.
15
participate fully in civic engagement activities, make
meaningful contributions to the broader local
community, and become fully-integrated, productive
members of society. The high correlation between
limited English proficiency and poverty rates within
immigrant communities indicates that improved
English skills benefit the individual as well as his or
her community and the nation as a whole.*4
Developing effective English language skills
provide ELL students the opportunity to increase
their future earning potential and achieve economic
self-sufficiency and stability. Further, ELL students
who acquire English language skills will be better
able to assist their non-English speaking family
members in adapting to life in the United States and
integrating into the broader society.25 All of these
potential benefits are dependent on effective ELL
programs.
2. Learning English Is Most Effective
When Children Are Taught As Early As
Possible.
Children who fail to receive an adequate
education in English are unlikely to have a second
opportunity to learn English as adults. Depending
on their background, their prior formal educational
experiences and a host of other factors, it can take
years for ELL students to develop English language
24 Batalova, Fix, Murray, supra note 8, at 31.
25 Hovt Bleakley and Aimee Chin, What Holds Back the Second
Generation? The Intergenerational Transmission of Language
Human Capital Among Immigrants, The Center for
Comparative Immigration Studies, University of California,
San Diego, at 2 (Oct. 2004), ava:lable at http://www.ceis-
uced org/PUBLICATIONS/wrkg104.pdf.
16
proficiency. Acquiring the competency in academic
English necessary for ELL students to perform at the
same academic level as their non-ELL peers takes
between four and seven years.?® Thus it is important
that ELL programs focus on developing an ELL
student’s proficiency as early and as consistently as
possible. The educational experiences and
developmental activities that occur during the earlier
years of a child’s life play a critical role in his or her
overall development.?2?
The lack of widely available and effective adult
ELL programs underscores the importance and
benefits of effective ELL programs aimed at
developing English language proficiency for school-
aged children. A survey of 184 English as a Second
Language (“ESL”) providers found that more than
half of those providers indicated that there was a
waiting list for adult ESL classes ranging anywhere
from a few weeks to more than three years.?8 The
tremendous demand for adult ESL ‘classes in the
26 Kenji Hakuta, Yuko Goto Butler, and Daria Witt, How Long
Does it Take English Learners to Attain Proficicncy? The
University of California Linguistic Minority Research Institute,
at 10 (2000), avarlable at
Attp ‘/caselinks.education.ucsb.edu/casctraincr/CLADContent/C
ladLanguage/node 7/theorv/How Long. pdf
27 See National Association for the Education of Young Children
(NAEYC), Screening and Assessment of Young English-
Language Learners, Supplement to the NAEYC Position
Statement on Early Childhood Curriculum, Assessment, and
Program Evaluation (Summer 2005), avaslable at
http’//www.naecyc.org/about/positions/pdf/ELL_Supplement.pdf.
2’ Dr. James Thomas Tucker, Wasting Times for Adult ESL
Classes and the [Impact on English Learners, The National
Association of Latino Flected and Appointed Officials Education
Fund, at 13 (June 2006). available at
http-//www_naleo.org/downloads/ESLReportLoRes.pdf.
17
United States, coupled with the scarce supply of
available ESL classes underscores the importance of
developing and implementing effective programs in
public schools to ensure that, by the time they
hecome adults, ELL students will have developed the
necessary English language skills and will not have
to rely on adult ELL programs.
3. Effective ELL Programs Benefit Society
As A Whole.
Effective English language instruction not only
can provide tremendous benefit for an individual, but
can have an enormous impact on society as a whole.
The correlation between effective ELL instruction
and the ability of a student to graduate from high
school provides an excellent illustration of this point.
Without effective ELL programs, this educational
gap between ELL students and English-fluent
students will remain, making it difficult for ELL
students to enjoy the same opportunities afforded to
English-proficient students with greater academic
proficiency. Effective ELL programs aimed at
narrowing the educational gap between ELL student
and English-fluent students can also promote greater
unity and integration within a school, as the ELL
students are better able to relate to their English-
proficient peers and better able to assimilate and
integrate into the school environment.
As the Ninth Circuit noted, an ELL student's
problems extend beyond extra assistance with
English. “A tenth grader, for example, who speaks
no English but must pass a biology course taught
entirely in English will require’ considerable
assistance.” Flores v. Arizona, 516 F.3d 1140, 1169
18
(9th Cir. 2008). Until a student is English proficient,
the student will need extra assistance in all
subjects.?9
The educational gap, in turn, results in lower
graduation and matriculation rates for ELL
students,°° which in turn are tied to lower future
earning potential for such ELL students.*! Viewed
strictly from the standpoint of enabling an individual
ELL student to improve his or her quality of life, the
impact is stark: a high school diploma results, on
average, in an additional $8,580 in income per year.*2
The lifelong impact of a failed ELL education has
a financial effect on a student’s community, the state,
and the nation as a whole. As identified supra,
29 “It is not an easy undertaking to learn and excel in math,
reading and language arcs, science, and other core academic
subjects that have become integral to a college and work-ready
curriculum, all while learning a new language.” Lazarin, supra
note 12, at 17.
” See NEW YORK STATE BOARD OF REGENTS, supra note 18
(finding that only 25 to 30 percent of ELL students in New York
graduate within four years of entering high school, compared to
71 percent of non-ELL students); and see a/soM.M. McMillen.
P. Kaufman, & S. Klein, Dropout rates in the United States.
1995, Washington, DC: U.S. Department of Education, Office of
Educational Research and Improvement, NCES 97-473 (1997)
(finding that, in 1995, students who reported that they did not
speak English well had a 32.9% dropout rate, compared to
19.2% dropout rate for students who reported speaking English
well or very well).
} U.S. CENSUS BUREAU, Earnings Gap Highlighted by Census
Bureau Data on Educational Attainment, (2007), available at
http://www.census.gov/Press-
Release/www/releases/archives/education/009749. html.
42 BUREAU OF LABOR STATISTICS, Employment Projections: Pavs
to Play, (March 6. 2009), available at
http://www bls.gov/emp/emptab7.htm
19
California reports that 20 percent fewer ELL
students passed the mandatory exit exam required to
obtain a high school diploma, when compared to the
overall student body.** California taxpayers lose
$169,000 in additional tax revenues over the lifetime
of an individual who fails to obtain a high school
diploma.*4
Further, the community at large sees a reduced
burden on expenditures relating to crime, health,
and welfare when more students graduate. Only 25-
30 percent of ELL students in New York graduate
within four years of entering high school, compared
to 71 percent of native English speakers. For each
new ELL high school graduate, New York saves
$15,993 in Medicaid and uninsured costs.*® Viewed
another way, a 5 percent increase in male high
school graduates nationwide could result in crime-
related savings of $4,939,017,909 on an annual basis,
in addition to the related intangible benefits of
lowering the crime rate.3"
33 California Department of Education News Release #08-117,
September 9, 2008 tbl.1, avarlable at
http://www.cde.ca.gov/nr/ne/yr08/yr08rel117.asp#tab1.
34 Clive R. Belfield and Henry M. Levin, 7'‘he Heturn on
Investment for Improving California’s High School Graduation
Rate, California Dropout Research Project, at 2 (Aug. 2007)
(affiliated project of University of Califorma Linguistic Minority
Research Institute), available at
http://www.cbcse.org/media/download_gallery/California%20Dro
pout%20Study%20Report%202FINAL pdf.
35 NEW YORK STATE BOARD OF REGENTS, supra note 18.
% Jason Amos, Dropouts, Diplomas, and Dollars’ i" S. High
Schools and the Nation’s Economy, Alliance for Excellent
Education, at 39 app.3 (August 2008), avai/able at
http’//www_all4ed org/files/Econ2008 pdf.
° [d at 38 app.2
20
While an individual ELL student’s right to an
equal education should be reason enough to
implement and maintain~ effective English
instruction, it is important to recognize that a failure
to provide appropriate English instruction has
serious social and economic costs as well.
C. THE COURT SHOULD NOT CONSIDER
COMPLIANCE WITH THE NCLB EQUIVALENT To
COMPLIANCE WITH THE EEOA.
Petitioners argue that the NCLB’s statutory
scheme supplements the purpose of the EEOA and
defines the EEOA’s “appropriate action”
requirement, such that compliance with the NCLB
equates to compliance with the EEOA. Although
both the EEOA and the NCLB attempt to advance
the achievement of ELL students, the two statutes
seek advancement by entirely different means that
cannot be interpreted coterminously. Many of these
reasons are discussed in Respondents’ bniefs.
However, an area of particular importance to amucris
the EEOA’s private right of action, which permits an
individual citizen to bring suit in order to enforce the
rights ensured by the EEOA. The NCLB contains no
such express right, nor should this testing-based law
be burdened with the additional obligation of
protecting the civil rights of ELL students.
The EEOA, in part, ensures that ELL students
have equal access to education by allowing individual
students to bring private causes of action for any
violation of the Act. Section 1706 of the EEOA states
that “an individual denied an equal educational
opportunity...may institute a civil action in an
appropriate district court of the United States
against such parties, and for such rehef, as may be
2!
appropriate.” 20 U.S.C. § 1706. Since the enactment
of the EEOA, ELL students have used this private
cause of action under the statute to guarantee equal
access to education in order to overcome language
barriers. See e.g. Gomez v. Illinois State Bd. of
Education, 811 F.2d 1030 (7th Cir. 1987); Morales
v. Shannon, 516 F.2d 411 (5th Cir. 1975).
Specifically, an ELL student may bring suit
against an educational agency that fails “to take
appropriate action to overcome language barriers
that impede equal participation by its students in its
instructional programs.” 20 U.S.C. § 1703(f).
Conversely, the NCLB does not appear to offer such
method of enforcing individuals’ rights. “The No
Child Left Behind Act does not create a private right
of action.” Alliance for Children v. City of Detroit
Public Schools, 475 F.Supp.2d 655, 657 (E.D. Mich.
2007). “The NCLBI] provides no procedure for
individual entities [] to enforce its requirements: the
Act's only ‘penalties’ provision allows the Secretary of
Education to withhold funds from states that do not
meet the Act's requirements.” Fresh Start Academy
v. Toledo Board of Education, 363 F.Supp.2d. 910,
914 (N.D. Ohio 2005).38
* Petitioner Superintendent states that the NCLB permits
individual students to file an administrative complaint if their
programs are inadequate, which complaint ultimately could be
resolved by the Department of Education. Brief for the
Petitioner Superintendent at n.23. However, the NCLB itself
provides no specific procedures for the resolution of complaints,
leaving that up to the individual states to implement. 20 USCS
§ 7844 (each state will “adopt and use proper methods of
administering each such program, including ... the adoption of
written procedures for the receipt and resolution of complaints
alleging violations of law in the administration of the
programs’). Thus, the procedures, nghts and remedies
22
Further comparisons between the NCLB and the
EEOA confirm the insufficiency of the NCLB to
address the issues contemplated by and addressed in
the EEOA to protect the important educational
rights of each student.3® First, and perhaps most
significantly, states and school districts are not
required to comply with the NCLB. Individual states
or school districts may choose to opt out. See 20
U.S.C. § 7907(a) (“[Inlothing in this Act shall be
construed to authorize an officer or employee of the
Federal Government to ... mandate a State or any
subdivision thereof to spend any funds or incur any
costs not paid for under this Act”). If the EEOA is
overridden and its private right of action eliminated,
students in states that have opted out of the NCLB
(or may do so in the future) will have no recourse
against a discriminatory school system.
Further, technical aspects of the NCLB can
adversely affect ELL students. The NCLB
designates four groups of students for particular
focus, one of which comprises students who are
available to a student to rectify an inadequate ELL program
could vary significantly from state to state and cannot be
considered equivalent to the private right of action under the
KEOA.
39 Petitioners Speaker of the Arizona House of Representatives
and President of the Arizona Senate assert that they are not
arguing for the implicit repeal of the EEOA. Brief for
Petitioners at 60. However, if the Court accepts that a school
district meeting NCLB-standards is de facto complying with the
EEOA, the outcome for underserved ELL students in that
district is an implied repeal of the EEOA’s private right of
action. Petitioners admit as much, stating that the EEOA will
be limited to providing protection “particular schools or school
districts engagling] in /ndividual instances of discrimination”.
Brief for Petitioners at 60. Petitsoners’ argument severely
curtails the purpose of the EEOA.
23
limited in English proficiency. However, ELL
students are only considered to be an “accountability
group” if a “minimum group number” of ELL
students attend a school district where the NCLB
has been adopted.4° That minimum group number is
determined at the school district’s discretion. Thus,
if the school district's group number for ELL
students is 50, but only 49 ELL students attend that
school, NCLB provides no_ accountability for
language access to those 49 children. If the NCLB
were construed to supersede the EEOA, ELL
students could face an untenable circumstance where
they are not receiving adequate English language
instruction, and yet have no ability to require their
school district to improve (or even offer) such
instruction. Perversely, because such a district
would not be accountable for language access
provided to the students who fall outside of the
accountability group, the school district would have
no incentive under the NCLB to offer such programs.
Another example comes from the methods by
which Petitioners contend Arizona's compliance can
now be assessed: mandatory testing pursuant to the
NCLB’s requirements. While the NCLB permits
states to offer native language assessments or
alternative assessments for testing ELL students to
capture better a student's grasp of content, Arizona
declines to offer either accommodation.?!
49 U.S. DEPARTMENT OF EDUCATION, Fact Sheet- NCLB
Provisions Ensure Flexibility and Accountability for Limited
English Proficient Students, (last modified Feb. 19, 2004),
available at
http://www.ed_gov/nclb/accountability/schools/factsheet-
english. html.
1! UNITED STATES GOVERNMENT ACCOUNTABILITY OFFICE, supra
note 15, at 33°34.
24
Appropriate testing and assessment of ELL students
has been controversial, and the alternatives offered
under the NCLB are adopted inconsistently among
the participating states, thus making data
concerning the progress of ELL students impossible
to compare. It appears likely that such issues will
continue to arise. The Government Accountability
Office’s July 2006 Report, “No Child Left Behind Act:
Assistance from Education Could Help States Better
Measure Progress of Students with Limited English
Proficiency,” reports that
[The Department of] Education has issued
little written guidance on how states are
expected to assess and track the English
proficiency of [limited English proficient]
students, leaving state officials unclear about
Education’s expectations ... [MJany of the
state and district officials we interviewed told
us that the current flexibilities do not fully
account for some characteristics of certain
students in this student group... . 42
Further, there is conflict among state officials
over how ELL students should be tested going
forward. Some state officials seek longer exemptions
from testing for ELL students, while others think
that ELL students should be excluded from testing
altogether until they demonstrate appropriate
English skills.4* If the Department of Education
were to permit such accommodations (and they may;
the purpose of the GAO's report was to suggest to the
Department of Education that further
accommodation may be warranted), the NCLB-
‘2 Jd. at Al.
3 Jd. at 48.
25
related testing that Petitioners assure the Court will
satisfy the requirements of the EEOA may disappear
altogether for ELL students.
Finally, under the NCLB, states are permitted to
establish their own academic content, develop their
own tests to measure performance, and set standards
for what constitutes proficiency.44 The process is
completely insular, with minimal oversight or
consequence unless a state’s students fail to meet
those standards. Consequently, a state whose
students are meeting the criteria established by that
state satisfies the requirements set forth by the
NCLB. However, if that state were nonetheless
failing to take appropriate action to overcome
language barriers, the affected students would have
no ability to rectify their situation, as the NCLB
contains no private right of action.
Because the firadamental purpose of the EEOA is
different from the NCLB, compliance with the NCLB
alone cannot constitute compliance with the EEOA.
The NCLB determines compliance by measuring
student performance asa whole. The essence of the
EEOA’s private right of action is to ensure that each
individual student receives equal educational
opportunities, independent of the individual's group
affiliation. That right should not be abrogated. Had
Congress intended to overturn the EEOA, it could
have easily said so, but it did not. Instead, the
NCLB explicitly provides that “(nothing in this part
shall be construed in a manner inconsistent with any
Federal law guaranteeing a civil right.” 20 U.S.C. §
6847. The EEOA guarantees civil rights to
individual students. Having those rights depend
4% /d.at9
26
upon compliance with a gradual performance statute
like the NCLB is inconsistent with the purpose of the
EEOA. The EEOA and the NCLB both serve very
important purposes in advancing ELL instruction in
the United States. However, it is important that
those purposes remain distinct.
D. AMICI IN SUPPORT OF PETITIONER IMPROPERLY
SEEK To REFRAME THIS CASE INTO ADEBATE
ABOUT EDUCATIONAL THEORY.
In their briefs in support of Petitioners, amuci
improperly seek to politicize the issues before this
Court by debating the effectiveness of bilingual
education as compared to other theories of teaching
English to non-native speakers. The merits of
bilingual education (as opposed to an English-
immersion style of teaching, currently required by
law in Arizona) are not at issue here. The only
salient consideration is whether the method adupted
by the state provides ELL students with an adequate
education under the EEOA.
The Ninth Circuit did not require that any
particular theory of English education be imposed on
the Nogales school district. Indeed, the school
district is required only to employ an effective means
of English instruction. The Ninth Circuit recognized
that:
Shortly after the injunction lordering Arizona
to prepare a cost study to establish the
proper appropriation to implement ELL
programs], in November 2000, Arizona voters
approved two propositions that altered
Arizona's school funding and ELL programs.
Proposition 203 largely abohshed bhngual
27
education, replacing it with sheltered English
immersion ... Proposition 301 increased
school funding generally in Arizona through
a sales tax increase.
Flores at 1149. Further, the Ninth Circuit focused
its analysis of “changed facts” on policy changes
implemented by the “successful management” of Kelt
Cooper and his successor, Dr. Guilermo Zamudio,
and resultant testing scores, funding issues, and
conditions in comparable districts. The Ninth
Circuit did not base its analysis in any way on the
possible merits of a bilingual education, nor did it
criticize Arizona’s current policy of English-
_immersion education, simply stating that while
“Arizona’s theory of ELL instruction has changed
over the years, the enormous importance of such
programs to students and parents in Nogales has
not.” Flores at 1145.45 The Ninth Circuit's holding
does not rely in any way upon an evaluation of the
method of providing English language instruction to
its students, because neither petitioner nor
respondent focused the Court on the issue. Rather,
the Court’s focus was (appropriately) on whether
ELL programming funds are sufficient (as that was
45 This is not to say that the Ninth Circuit did not recognize
that there had been a policy shift following the passage of
Proposition 203: “[A]fter 2000, when Arizona moved away from
bilingual education and required most courses to be taught in
English, regardless of students’ language abilities, these
challenges have become greater: A tenth grader, for example,
who speaks no English but must pass a biology course taught
entirely in English wall require considerable assistance.” Flores
at 1169. The Ninth Circuit does not criticize English immersion
educational theories, but rather makes a valid point about the
resources required for effectively transforming theory into
reality.
28
the method of compliance originally adopted by the
state). The Ninth Circuit did not review the way in
which ELL students were being educated, leaving
that up to the state’s discretion. Rather, the Court
reviewed whether or not there had been a change of
fact that might relieve Arizona from the final
judgment.
Thus, it is clear that amici are mistaken when
they state that the Ninth Circuit erred as a result of
its alleged “failure to understand the evolution in
methods for teaching English Language Learners,”4¢
and by “substituting its own preference for educating
Arizona’s students for the validly enacted policy of
the people of Arizona.”47 Amucr The Eagle Forum’s
conclusory statement that “prior federal statutory
acceptance of English immersion would support the
appropriateness of Arizona’s academic success’! is
not supported. Rather, these attempts to inflame
passions over immigration or English-only policies
are a disservice to Arizona’s ELL students. Arizona
has failed to take appropriate action to overcome
language barriers that impede equal participation by
its students in educational programs. This is a
violation of the EEOA, regardless of whether the
failure occurs in the process of teaching ELL
students via an English-immersion program or
through bilingual education. The Court should not
6 Brief of the American United Legal Defense Fund, English
Language Political Action Committee, ProEnglish and the
Center for Opportunity, as 4mzc1 Curiae Supporting
Petitioners, at 2.
47 Brief Amicus Curiae of Pacific Legal Foundation and
Evergreen Freedom Foundation in Support of Petitioners, at 3
* Bret Amicus Currae of Kagle Forum Education & Legal
Defense Fund. Inc., In Support of Petitioners, at 5-6.
29
consider these incendiary proclamations by amzyci for
Petitioners, which do not bear on the issues here.
Finally, alarmist stories of disaster resulting
from mistranslations of English phrases‘? do not
inform the issue before the Court, unless it is to
emphasize the importance of adequate programs for
ELL students. To the extent they are relevant at all,
amicis examples highlight the tragic results of
inadequate English language instruction. It is
indeed ironic for these examples to be cited as
examples for why Arizona should be permitted to
continue flaunting the federal judgment in place
against it by continuing to underfund ELL programs.
—
Brief Amicus Curiae of Eagle Forum Education & Legal
Defense Fund, Inc., In Support of Petitioners, at 17-18 n.3.
30
CONCLUSION
The judgment of the court of appeals should be affirmed.
Respectfully submitted,
KAREN K. NARASAKI
VINCENT A. ENG
MEREDITH S.H. HIGASHI
ASIAN AMERICAN
JUSTICE CENTER
1140 Connecticut Ave.,
NW
Suite 1200
Washington, DC 20036
(202) 296-2300
ALAN GILBERT
Counsel of Record
RICHARD ZUCKERMAN
KATHERINE EVANS*
CHRISTOPHER LEE**
JONATHAN CHOCK*
SONNENSCHEIN NATH &
ROSENTHAL LLP
7800 Sears Tower
233 South Wacker Dr.
Chicago, IL 60606-6404
(312) 876-8000
* Admitted only in
California
** Admitted only in
Arizona
Attorneys for Amici Curiae
APPENDIX
1-A
APPENDIX A
List Of Amici Curiae
Asian American Institute (AAD
AAI is a pan-Asian, non-partisan, not-for-profit
organization located in Chicago, Illinois, whose
mission is to empower the Asian American
community through advocacy, by utilizing coalition
building, education, and research. AAI’s programs
include community organizing, leadership
development, and legal advocacy. Asian Americans
are a diverse and often overlooked community, but
they are one of the fastest-growing populations in the
United States. In today’s diverse society, it is crucial
to eradicate language access barriers faced by the
Asian American community at health care
institutions, polls, and schools. Because AAI
recognizes the importance of effectively educating
English Language Learners, AAI has a strong
interest in the outcome of this case.
Asian Law Caucus (ALC)
Founded in 1972, ALC 1s a non-profit organization
advancing the legal and civil rights of Asian
American and Pacific Islander communities. It is the
nation’s oldest legal organization serving Asian
Americans and is dedicated to the pursuit of equality
and justice for all sectors of society. We advocate for
equal access to all public services regardless of
English language ability and focus on the needs of
Asian immigrants In particular.
Asian Pacific American Legal Center of Southern
California (APALC)
2-A
APALC was founded in 1983 and is the nation's
largest non-profit public interest law firm devoted to
the Asian Pacific American community. Serving
15,000 individuals and organizations each year,
APALC has expertise in workers' rights, anti-
discrimination, immigrant welfare, immigration and
citizenship, voting rights, and hate crimes. APALC
represents and advocates for limited English
proficient individuals through public advocacy,
community education, and litigation to ensure
adequate language services to immigrants.
Asian Pacific American Legal Resource Center
(APALRC)
APALRC is the Capital Region’s non-profit advocate
advancing the legal and civil rights of Asian Pacific
Amcricans through direct services, education, and
advocacy. The APALRC addresses the individual
legal needs of low-income and limited English
proficient Asian Pacific Americans and advocates for
broad-based systemic change on legal and civil rights
issues impacting Asian Pacific Americans. The
APALRC joins amici secking to ensure equal and
meaningful access to education for limited English
proficient individuals.
Boat People SOS (BPSOS)
BPSOS is a national immigrant services organization
serving primarily Victnamesce refugees and
immigrants with 13 branch offices nationwide.
BPSOS’ domestic operation includes a large array of
human and immigration services for Vietnamese
refugees and immigrants. Upon immigrating to the
United States, most older Vietnamese have limited
English proficiency, if any. The children of these
immigrants need the additional assistance in the
3-A
American educational system to learn the language
and to assimilate into American culture and take full
advantage of the opportunities this country has to
offer. It is because of this interest BPSOS
participates in the brief.
California Rural Legal Assistance Foundation
(CRLAF)
CRLAF is a non-profit legal services organization
representing farm workers and other low income
immigrant families in rural California. The majority
of CRLAF clients are not English speakers and are
representative of the diversity of farm workers in
California, speaking not only Spanish, but a variety
of indigenous languages. For over 30 years CRLAF
has advocated for the rights of English learners in
California schools through legislative advocacy and
has represented farm worker families in actions
brought under the EEOA and in writ proceedings
seeking to compel state and local officials to comply
with the independent mandates of the NCLB.
Child Care Law Center (CCLC)
CCLC is a public interest, non-profit law firm that
uses legal tools to make high quality, affordable
early childhood education available to every child,
family and community. As a legal services support
center, CCLC focuses particular attention on families
who face barriers in securing and maintaining
quality early childhood education: low-income
families, limited English proficient parents and their
English Language Learner children, families and
children with disabilities and special health care
needs, and other vulnerable families. CCLC directly
serves clients who are affected by a lack of access to
English language learning in early education
4-A
settings and provides technical assistance to legal
services programs throughout the state of California
working on issues of access and support for young
English Language Learners. CCLC joins this amicus
brief to help ensure English Language Learner and
limited English proficient children have meaningful
access to education.
Coalition of California Welfare Rights Organizations
(CCWRO)
CCWRO is a private, non-profit organization
established in 1982 as a statewide public interest
non-profit law firm which specializes in poverty law,
including civil rights law, and advocates on behalf of
limited English proficient individuals in California to
ensure that they have meaningful access to
government programs, services, and benefits as
required by Title VI of the Civil Rights Act of 1964.
This is vital for refugees and limited English-
speaking persons to become self-sufficient and end
reliance on public benefits.
Empire Justice Center
The Empire Justice Center is a statewide public
interest non-profit law firm which specializes in civil
rights law and advocates on behalf of limited English
proficient individuals in New York to ensure that
they have meaningful access to government
programs, services, and benefits as required by Title
VI of the Civil Rights Act of 1964. The Empire
Justice Center is a member of the National
Language Access Advocates Network (N-LAAN), a
national organization that supports and engages in
effective advocacy to eradicate discrimination based
on language.
5-A
Isabel Framer
Isabel Framer is CEO of Language Access
Consultants, LLC in Copley, Ohio. Ms. Framer is a
national expert on language access, an Oregon and
Tennessee-certified judiciary interpreter, author, and
Chair of the National Association of Judiciary
Interpreters and Translators. She has served on the
Interpreter Services Subcommittee of the Supreme
Court of Ohio’s Racial Fairness Implementation Task
Force and on the Board of the Racial Fairness Project
in Cleveland, Ohio. Through consulting and policy
work, particularly with regard to court, law
enforcement, domestic violence and other legal and
quasi-legal settings, Ms. Framer seeks to improve
language access for Limited Engiish Proficient
communities. She joins this amicus brief because the
effective education of English Language Learners
has broad implications for their full and equal access
to justice.
The Fred T. Korematsu Center for Law and Equality
(Korematsu Center)
The Korematsu Center is a non-profit organization
based at Seattle University School of Law and works
to advance justice through research, advocacy, and
education. The Korematsu Center is dedicated to
advancing the legacy of Fred Korematsu, who defied
the military orders during World War II that
ultimately led to the internment of 110,000 Japanese
Americans. He took his challenge of the military
orders to the United States Supreme Court, which
upheld his conviction in 1944 on the ground that the
removal of Japanese Americans was justified by
“military necessity.” Fred Korematsu went on to
successfully challenge his conviction and to
champion the cause of civil liberties and civil rights
6-A
for all people. The Korematsu Center, inspired by his
example, works to advance his legacy by promoting
social justice for all. It has a special interest in
safeguarding language rights to ensure educational
and economic opportunities so that everyone can
participate fully in our nation’s democratic
traditions. We note that the Korematsu Center does
not, in this brief or otherwise, represent the official
views of Seattle University.
Hmong National Development, Inc. (HND)
HND is a national, non-profit organization
developing capacity to ensure the full participation of
Hmong in society. HND works with local and
national organizations, public and private entities,
and individuals to promote educational
opportunities, to increase community capacity, and
to develop resources for the well-being, growth, and
full participation of Hmong in society. Historically,
we have provided advocacy on behalf of Hmong
refugees who face barriers to opportunities in society
due to lack of resources and language abilities.
Japanese American Citizens League (JACL)
The JACL, founded in 1929, is the nation's oldest
and largest Asian American non-profit, non-partisan
civil rights organization with 113 chapters
throughout the continental United States, Hawai'i,
and Japan. It consistently strives to uphold the civil
and human rights of Americans of Japanese
Ancestry and of all people. The JACL has held a
prominent role in obtaining redress for Japanese
Americans who were interned during World War LI.
Currently it works to educate against and combat
discrimination on the basis of race, national origin,
age, ethnicity, gender, or disability, and to protect
7-A
the right of all persons to equal participation in
educational programs. Since Brown v. Board of
Education, the JACL has maintained a strong
position in protecting civil rights and protecting
equal educational opportunities. Amuicithus has an
important and substantial interest in this case.
Legal Aid Association of California (LAAC)
LAAC is a statewide membership association of over
80 non-profit public interest law organizations,
which provide free civil legal services to low-income
persons and communities throughout California, and
over 90 individual staff members and supporters of
such programs. The mission of LAAC (which is itself
a non-profit corporation) is to ensure the efficient
and coordinated delivery of legal services to indigent
and disadvantaged persons throughout California,
and to provide an effective and unified voice for its
members on issues of concern to the statewide justice
community. LAAC member organizations provide
legal assistance on a broad array of substantive
issues, ranging from general poverty law to civil
rights to immigration, and also serve a wide range of
poor, disadvantaged, and vulnerable populations.
Many of LAAC’s organizational members serve
chents who are affected by a lack of access to English
language learning. LAAC supports the goals and
missions of N-LAAN.
National Korean American Service & Education
Consortium (NAKASEC)
NAKASEC is a national non-profit organization
based in Los Angeles with a Washington, D.C. office.
NAKASEC’s affiliates are the Korean American
Resource & Cultural Center in Chicago and the
Korean Resource Center in Los Angeles. Founded in
8-A
1994, NAKASEC is a multi-issue civil rights and
human rights organization based in the Korean
American community. NAKASEC’s mission is to
project a national progressive voice for Koreans
Americans and promote their full participation in the
United States. To this end, NAKASEC promotes
equitable and just changes to the political and
legislative systems through a combination of
education and policy advocacy with grassroots
organizing and community mobilization.
Organization of Chinese Americans, Inc. (OCA)
OCA is a 501(c)(3) national non-profit, non-partisan
organization dedicated to advancing the social,
political, and economic well-being of Asian Pacific
Americans in the United States. With over 80
chapters and affiliates across the nation, OCA’s aims
are to advocate for social justice, to promote civic
participation, to advance coalitions and community
building, and to foster cultural heritage. OCA
monitors issues and policies that affect the Asian
Pacific American community. To ensure the progress
of all members of this diverse community, OCA
champions programs that support the inclusion and
integration of those with educational and language
needs.
Sikh American Legal Defense and Education Fund
(SALDEF)
SALDEF is the oldest Sikh American civil rights and
advocacy organization in the United States. Founded
as the Sikh Mediawatch and Resource ‘l'ask Force
(SMART) in 1996, SALDEF empowers Sikh
Americans through legal assistance, educational
outreach, legislative advocacy, and media relations.
SALDEF’s work with other Sikh and minority
9-A
organizations includes’ extensive experience
providing advocacy and community education on
immigration issues. SALDEF has a strong interest
in advancing opportunities for Sikh Americans by
eliminating language barriers.
South Asian Americans Leading Together (SAALT)
SAALT is a national non-profit organization whose
mission is to promote the full and equal civic and
political participation of South Asians in the United
States. More than 2.7 million South Asians reside in
the United States, many of whom speak limited
English and confront linguistic barriers in obtaining
basic services and benefits. SAALT joins this amicus
brief to help ensure that resources are provided to
English Language Learner and limited English
proficient students in order to obtain meaningful
access to education.
Southeast Asia Resource Action Center (SEARAC)
SEARAC is a national non-profit organization
advancing the interests of Southeast Asian
Americans through leadership development, capacity
building and community empowerment. Established
in 1979 to assist with the resettlement of the largest
group of refugees to the United States from
Southeast Asia, SEARAC continues to be a leading
advocate for these communities. SEARAC has been a
strong advocate on student rights, particularly for
English language learners and their access to high
quality instruction and educational services.
Through our work on K-12 education issues with
congressional and federal policy makers and with
Southeast Asian American families who are directly
affected, we recognize the unfair and harmful impact
our current education policies have on our
10-A
communities across the United States. As such, we
support AAJC in its submission of this brief to
highlight the consequences of inadequate resources
for the instruction of non-native English-speaking
students and their families.
The Watsonville Law Center (WLC)
WLC is a private, non-profit, legal services
organization established in 2002 to provide low-
income individuals equal access to the law by
assisting them to understand, exercise and enforce
their rights. WLC serves a primarily monolingual
Spanish-speaking farmworker community in an
agricultural region. WLC addresses legal barriers
faced by immigrant and other low-income individuals
as they strive to access health and financial
sustainability. English language proficiency
increases access to justice, strengthens low-income
families and improves their economic prospects over
time. WLC joins this amuci brief to help ensure the
thousands of children in our community who are
English language learners have the resources and
opportunities necessary to obtain a meaningful
education for a prosperous future.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.