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  • Supreme Court strikes a blow against minority language rights

    In a blow against minority language rights, the Supreme Court has ruled in the case of Horne v. Flores that the federal government must stop monitoring how the state of Arizona teaches its non-English-speaking students, despite evidence that these students continue to do much worse than their English-speaking peers in school.

    Seventeen years ago a group of Nogales, Arizona, parents whose children spoke little or no English sued the state, charging that their children had been denied “equal educational opportunity [by failing] to take appropriate action to overcome language barriers” as required by the Equal Educational Opportunities Act of 1974 (EEOA, 20 U. S. C. §1703). In 2000, the federal district court found that the state had violated the EEOA and issued a series of compliance orders.

    But in 2006 Arizona requested relief from those earlier court orders and last week the Supreme Court ruled 5 – 4 that Arizona has made great progress in handling English language learners and so should be free from federal supervision.

    But as Justice Stephen Breyer pointed out in his dissent, Arizona students classified as English Language Learners (ELL) show no signs of having overcome the “language barriers” that constitute discrimination based on national origin. Their high school graduation rate is 59%, compared with 75% for native English speakers. Overall only 28% of ELL students pass mandated standardized tests. Only 13% of ELL 7th graders passed the reading test, compared with 74% for students whose first language is English. Things are even worse in the border town of Nogales. With 37% of its students in ELL programs, Nogales High is ranked 575th out of Arizona’s 629 high schools in student achievement.

    Despite these appalling numbers, the Supreme Court found that Arizona does so well educating its non-English speaking children that the state no longer needs to be monitored to make sure that it complies with the EEOA.

    In his majority opinion, Justice Samuel Alito pointed to the great strides that Arizona has made in addressing the needs of ELL students (though Justice Breyer’s dissent makes clear that the effectiveness of these strides is in serious doubt): increased spending on English language instruction (though not enough to make a difference in places like Nogales); improved instructional materials and teacher quality (though there are no ELL guidelines and schools like Nogales High, with large ELL populations, can’t afford top teachers); the federal No Child Left Behind Law (which requires all tests to be in English); and a shift from long-term bilingual education programs to Structured English Immersion (SEI), which gives children English instruction while they’re being taught math, science, history and literature in English as well, even though their English often isn’t good enough for them to follow the lessons.

    Although Structured English Immersion was mandated when voters passed Proposition 203 in 2000, the state has yet to decide how to implement SEI instruction. As recently as 2007 a state official told the Court, “We’re getting ready to hopefully put down some models for districts to choose from.”

    Both bilingual and immersion pedagogies have the potential to help ELL students transition to English. Theoretically, bilingual education ensures that students don’t fall behind in core subjects, which are taught in the student’s first language, while they are acquiring English. Theoretically, immersion creates an environment where students learn a target language quickly and efficiently because it’s the language they use 24/7. Unfortunately, neither method has managed to accomplish the goal of helping nonanglophones to succeed in school. Bilingual education and structured immersion seem to fail more often than they work. Bilingual programs are often poorly implemented, both in terms of content delivery and in their language instruction, while structured immersion experiences are typically limited to a fraction of the school day over a period of one or possibly two years, which is enough time for students to master the conversational English they need at recess or in the cafeteria, but far too short a time for students to acquire the academic English necessary for school success. 

    Structured immersion is further hampered by its association with anti-immigration politics. Most often it’s not an educational philosophy but an English-only pedagogy that has been written into law: “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 English, and children in this program learn to read and write solely in English” (Ariz. Rev. Stat. Ann. §15–751[5]). In the early 1900s, when immigration was also heavy, schools called this method “sink or swim,” and in those days, like today, most immigrants sank.

    The SEI law limits Arizona students to only two years in the program, after which they must be mainstreamed with native speakers. Many language educators warn that children may need 4 or 5 years of instruction to achieve academic fluency. They further insist that the effectiveness of SEI has yet to be demonstrated. (Justice Breyer complained, as well, “The State’s own witnesses were unable firmly to conclude that the new system had so far produced significantly improved results.”) And they question the advisability of legislators requiring particular linguistic pedagogies or the legality of forbidding teachers to use a student’s native language.

    The decision in Horne v. Flores is framed narrowly in terms of educational funding and the technicalities of federal oversight rules. Nonetheless, it seems at odds with the Court’s landmark decision in Meyer v. Nebraska (1923), which struck down a Nebraska law whose language bears a striking similarity to Arizona’s Prop. 203. According to that statute, “No person, individually or as a teacher, shall . . . teach any subject to any person in any language than the English language.” In Meyer the court agreed that it was certainly desirable for children to learn English, but not if English was coerced unconstitutionally:

    The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution – a desirable end cannot be promoted by prohibited means.

    Horne also goes against the spirit of another high court language precedent, Lau v. Nichols (1974), a unanimous decision which ordered schools to address the needs of non-English-speaking students:

    The failure of the San Francisco school system to provide English language instruction to approximately 1,800 students of Chinese ancestry who do not speak English, or to provide them with other adequate instructional procedures, denies them a meaningful opportunity to participate in the public educational program and thus violates 601 of the Civil Rights Act of 1964, which bans discrimination based “on the ground of race, color, or national origin.”

    California law at the time, like Arizona’s law today, required instruction in all subjects to be in English. Bilingual instruction was authorized only “to the extent that it does not interfere with the systematic, sequential, and regular instruction of all pupils in the English language.” But in Lau, the Supreme Court ruled that “those who do not understand English are certain to find their classroom experiences wholly incomprehensible and in no way meaningful.” Without specifying a remedy or methodology, it ordered San Francisco to “take affirmative steps to rectify the language deficiency in order to open its instructional program to these students.” Now, in Horne v. Flores, the Court is saying that as long as a state takes affirmative steps, it is in compliance with the law, even if it’s clear that those “affirmative steps” are completely ineffective.

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