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									 UC LMRI
Language Wrongs in Arizona and Why
Californians Should be Concerned

            Daniel Choi and Stefan Rosenzweig
                  Brief Overview

For the past two decades the ruling in Castañeda v. Pickard,
adopted by OCR, has set a three-pronged test to provide a
minimal amount of protection to English Learners.

Litigation in California has been unsuccessful in overturning
Prop. 227 on the basis of the first Castañeda prong. Litigation
in Arizona now threatens to emasculate the second prong.

The court in Flores v. Arizona has recently ruled that a teacher
who completes a mere 15 hours of training is qualified to teach
English language learners. This is of course woefully inadequate
according to the most reliable research.

In this workshop we will discuss the current state of federal law
and activities in Arizona which inevitably has implications for
California as both states operate under the jurisdiction of the
U.S. Court of Appeals for the Ninth Circuit
Title VI of the Civil Rights Act
of 1964
      ―no person in the United States shall,on the ground of
       race, color or national origin, be excluded from
       participation in, be denied the benefits of, or be
       subjected to discrimination under any program or
       activity receiving Federal financial assistance.‖
       Prohibits discrimination based on race, color or
       national origin
      Courts and OCR have interpreted ―national origin‖ to
       cover ―limited English proficiency‖
Lau v. Nichols (U.S.S.Ct.1974)
  ―there 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.‖ ―Classroom experiences‖ would be
  ―wholly incomprehensible and in no way
Equal Educational
Opportunities Act of 1974
  20 U.S.C. Sec.1703 (f):
  ―No state shall deny equal educational
  opportunity to an individual on account
  of his or her race, color, sex, or national
  origin, by-
      (f) the failure of an educational
  agency to take appropriate action to
  overcome language barriers that impede
  equal participation by its students in its
  instructional programs.‖
Castaneda v. Pickard 1981
   Three prong test:
   1. Whether a district ―is pursuing a program
   informed by an educational theory recognized as
   sound by some experts in the field or, at least,
   deemed a legitimate experimental strategy‖
   2. Whether steps are taken ―to implement
   effectively the educational theory adopted by the
   3. After a ―legitimate trial‖ period the program is
   to be examined for ―indicat[ions] that the
   language barriers confronting students are
   actually being overcome….‖
        The program must be Evaluated and Modified
   if barriers not overcome.
Castaneda (cont.)

  LEP students must be provided the opportunity
  to learn English and to have access to the
  district‘s educational program.
  ―Leaves schools free to determine the sequence
  and manner in which LEP students tackle this
  dual challenge so long as the schools design
  programs which are reasonably calculated to
  enable these students to attain parity of
  participation in the standard instructional
  program within a reasonable length of time after
  they enter the school system.‖
Idaho Migrant Council/Gomez
v. Illinois
  ―federal law imposes requirements on the State
  Agency to ensure that plaintiff‘s language deficiencies
  are addressed.‖
Flores v. Arizona,48 F.Supp.2d 937 (D.Az 1999)

   Facts: ―August 20,1992, Plaintiffs filed this action…for failing to provide
   Limited English proficient (LEP) children with a program of instruction
   calculated to make them proficient in speaking, understanding,
   reading, and writing English, while enabling them to master the
   standard academic curriculum as required of all students.‖
   ―Plaintiffs further challenge the Defendant‘s funding, administration and
   oversight of the public school system in districts enrolling
   predominantly low-income minority children because Defendants allow
   these schools to provide less educational benefits and opportunities
   than those available to students who attend predominantly anglo-
Flores 1999: court holds(Marquez, Senior
District Judge)

   Trial set by court to determine ―Plaintiff‘s charge that Defendants are
   violating federal law in their oversight of Lau programs…as follows:
   Exit Criteria: Defendants [allow exit] …even when their scores on
   standardized tests signify a lack of reading comprehension skills
   necessary for satisfactory performance of coursework aligned with the
   revised Arizona Essential Skills….
   Performance Standards: Defendants do not prescribe standards of
   academic performance to enable consistent judgments to be made as
   to whether students exited from Lau programs are functioning
   satisfactorily in regular classes….
   30-minutes of English Instruction: [allowed by defendants]…
   IEPs; [not prepared by skilled personnel]….
   Monitoring and Remedial Failures: Defendants fail to monitor district
   compliance with federal Lau requirements and develop effective
   mechanisms for remedying program deficiencies.‖
Flores 1999 (end)

   Plaintiffs allegations re inadequate funding including districts inability to
   ―hire and/or train qualified LEP teachers and staff,and that districts lack
   necessary text books and other resources…shall be decided at trial.‖
   ―At trial, this Court will admit evidence regarding Plaintiffs‘ pass or fail
   rates on various academic tests, including AIMS, only as it is relevant
   to establish the success or failure of the Lau programs and to show
   that students are, or are not, acquiring State-prescribed essential
Flores v. Arizona, 172 F.Supp.2d 1225 (D.Az

   Marquez, J holds following trial:
   ―Defendants are violating the EEOA because the State‘s arbitrary and
   capricious LAU appropriation [$150 per student] is not reasonably
   calculated to effectively implement the LAU educational theory which it
   Defendants are violating the EEOA because the State has failed to take
   appropriate action to remedy language barriers…the State has failed to
   follow through with practices, resources and personnel necessary to
   transform theory into reality.‖
   There was no showing that the use of the AIMS to determine eligibility
   for graduation had a disparate impact on LEP students. The court
   found that no ―race-based inferences…might be drawn. Based on the
   evidence …at trial..[students] might ―fail the tests because they are
   low-income ‗at risk‘ students. Members in this group are not protected
   from discriminatory treatment.‖
Flores v. Arizona, Civ 92-596 TUC ACM, Consent
Order (June 2000)

   Parties reach agreement on a number of issues including:
       LEP Determination Criteria
       Performance Standards
       English Language Instruction
       LEP Individual Education Plans
       Monitoring
Flores v. Arizona, 160 F.Supp.1043 (D.Az

 Defendants required to prepare a cost study to establish the proper
    appropriation to effectively implement the State‘s Lau program.
Proposition 203 in AZ
  Passed by voter initiative in Nov. 2000
  Unz funded more than 80% of
  Proposition was ―next step‖ in Unz‘s
  personal quest to dismantle bilingual
New state schools Supt‘d promises to
enforce Unz strictly.

   Parties in Flores enter into stipulation allowing AZ to determine the
   training, background and qualifications necessary for teachers of ELL
   students and adopt appropriate rules. State agrees that previously
   ordered cost study would reflect funding and resources needed to train
   and develop teachers under Prop. 203.
   Much Legislative activity results in nothing for LEP students.
   Navajo Nation in battle with state over use of the Navajo language in
   state funded public schools on the Navajo reservation.
Flores, Collins, J. ORDER (Jan. 24, 2005)

 ―Defendants have until the end of this legislative session or April 30, 2005
    (whichever date is later) to comply with the Court‘s January 2000
    Order by appropriately and constitutionally funding the state‘s ELL
    programs taking into account the Court‘s previous orders and the
    parties stipulation.‖
State issues SEI Endorsement rule (Oct. 04)

   Structured English Endorsement:
   All persons holding a valid ―Elementary,Secondary, Principal,
   Superintendent, Supervisor, Career and Technical, and Special
   Education Arizona State Certificate shall obtain endorsement.
   Exception for those with bilingual or ESL endorsement.
    (needed by August 31, 2006)
   Provisional endorsement: Requires 15 clock hours (or one semester
   hour) of professional development which ―may be provided by the
   local education agency‖
   Full endorsement requires an additional 45 hours for a total of 60
   by August 31, 2009.
 R7-2-613. Endorsements: Arizona Department of
Structured English Immersion (SEI) Endorsements -- grades K-12

The provisional SEI endorsement is valid for three years and is not
  renewable. The requirements are:
        For teachers, supervisors, principals and superintendents certified
         on or after August 31, 2006, three semester hours of courses
         in Structured English Immersion methods of teaching
         English Language Learner (ELL) students, including but not
         limited to instruction in SEI strategies, teaching with the ELL
         Proficiency Standards adopted by the Board and monitoring ELL
         student academic progress using a variety of assessment tools; or

        For teachers, supervisors, principals and superintendents certified
         before August 31, 2006, one semester hour or fifteen clock
         hours of professional development in Structured English
         Immersion methods of teaching ELL students, including but
         not limited to instruction in SEI
R7-2-613. Endorsements: Arizona Dept. of Education
        strategies, teaching with the ELL Proficiency Standards adopted by the Board and
          monitoring ELL student academic progress using a variety of assessment tools through
          a training program that meets the requirements of A.R.S. §15-756(A)(5).

 3. The requirements for the SEI endorsement are:
     An Arizona elementary, secondary, special education, career and technical
      education, supervisor, principal, or superintendent certificate, and;
     Qualification for the provisional SEI endorsement, and either:
        Three semester hours of courses related to the teaching of the English Language
         Learner Proficiency Standards adopted by the State Board of Education, including but
         not limited to instruction in SEI strategies, teaching with the ELL Proficiency Standards
         adopted by the Board and monitoring ELL student academic progress using a variety of
         assessment tools; or
        Completion of forty-five clock hours of professional development in the teaching of the
         English Language Learner Proficiency Standards adopted by the State Board of
         Education, including but not limited to instruction in SEI strategies, teaching with the
         ELL Proficiency Standards adopted by the Board and monitoring ELL student academic
         progress using a variety of assessment tools through a training program that meets the
         requirements of A.R.S. §15-756(A)(5). 4. Nothing in this rule prevents school districts
         from requiring certified staff to obtain an ESL or bilingual endorsement as a condition
         of employment.
Flores,Collins, J. ORDER, Feb.8, 2005 (SEI rule
not violate court order)

   ―Plaintiffs seek Civil Contempt claiming that Defendants have violated
   the Court approved Stipulation which provides: ‗The state agrees that it
   will determine the training background and qualifications that are
   necessary for teachers of LEP Students under Proposition 203 and will
   adopt appropriate rules addressing the same‘. Plaintiffs allege that the
   new rule prescribes universal qualifications for all teachers and
   administrative personnel, but does not address qualifications for
   teachers of ELL Students…‘ Defendants argue that this option is best
   because it will provide all teachers with the opportunity to develop the
   necessary skills to appropriately address ELL Students unique needs and
   allow them to participate equally in their schools‘ instructional
   programs.‖ Contempt denied by court.
   ―The evidence shows that Defendants held extensive hearings, formed
   various committees, and put forth a good faith effort in adopting the
   new Rules.‖
AZ Education Profile
     1,742 schools; 922,180 students pre K-12

     19% live in poverty

     48% minority; 16% (148,000) ELL

     Second to last in nation for ed. Spending; and in adequacy index– only 13.4%
     of students in state are in districts that spend at or above the national avg.

     Avg. Class size in elem is highestin nation; second to last in efforts to improve
     teacher quality

     Student Achievement

Source: Wright, W. (2004). The Condition of English Language Learners in Arizona; Retrieved April 10, 2005
     Growth in ELL Enrollment over Time
              Total                         ELL
            Enrollment   Growth '91-'92   Enrollment   Growth '91-'92
1991-1992     717,352                        75,941
1992-1993     748,340             4.30%      83,643            10.10%
1993-1994     808,039            12.60%      95,011            25.10%
1994-1995     766,915             6.90%      98,128            29.20%
1995-1996     806,869            12.50%      72,253            -4.90%
1996-1997     815,877            13.70%      93,528            23.20%
1997-1998     833,238            16.20%     112,522            48.20%
1998-1999     841,647            17.30%     139,599            83.80%
1999-2000     850,840            18.60%     125,311            65.00%
2000-2001     875,659            22.40%     135,248            78.10%
2001-2002     903,518            26.00%     135,503            78.40%
2002-2003     978,128               21%     149,354            57.20%
2003-2004   1,011,959            25.20%     144,145            51.70%
                 ELL Enrollment by Program Type (Cont‘d)

Source: Arizona Education Policy Initiative (2003). The Condition of English Language Learners in Arizona; Retrieved April 10, 2005, from
Testing Policy for ELLs in AZ

   State and federal legislation requires the participation of all children in
   large-scale assessments to provide equal learning opportunity.

   Mandatory testing of ELLs on academic tests administered in English is
   integral to Proposition 203 (2000), No Child Left Behind (2001), and
   Arizona LEARNS (2003). Nevertheless, the federal government has
   yielded to complaints about the inherent unfairness in testing a
   student not yet proficient in the language of test.

   In 2004, Secretary of Education announced a dramatic change in
   federal policy regarding the testing of ELLs.
     In first year at a U.S. school, ELLs will no longer be req‘d to take
       content area assessments.
     Arizona state policy (Proposition 203 and Arizona LEARNS)
       continues to require that all ELLs take standardized achievement
       tests in English, even those in their first year at a U.S. school.
       Thus, there is a need to know if ELLs are able to adequately
       express what they know on a standardized test administered in
       English, or whether, for ELLs, standardized achievement tests do
       not detect differences in academic content knowledge.
        Summary of ELL Achievement:
      SAT-9 Reading, Math and Language

Achievement Tables show the Stanford 9 scaled score trends for students tested in
reading, language, and mathematics, respectively. Scaled score means, standard
deviations, and

Size of the tested sample are given separately for ELLs and non-ELLs in grades 2-9 across
three academic years, designated by the spring year.

As expected, the number of ELLs tested increases dramatically across the three years,
nearly doubling in most grades from 2001 to 2003.

This presumably reflects the Proposition 203 requirement that all ELL students be tested.

For ELL designees, average scores in reading and language dipped in all grade levels from
2001 to 2002, coinciding with the implementation year of Proposition 203,

Mathematics scores remained approximately constant.

Average scores then rose slightly in 2003 in all content areas. For the much larger group of
non-ELL students (native English speakers and non-native speakers with Fluent English
Proficient status), average scores varied less across the years in all content areas, and no
clear trends emerged.

Simultaneous policy changes (Proposition 301 and NCLB) decreased exemptions from
testing, changes in program requirements for ELLs, and higher stakes attached to
standardized tests—make it difficult to attribute ELLs‘ score fluctuations to specific policies
with any degree of confidence.
Closing 227‘s Loopholes

  More specific description of ―English Only‖
 CA – ―English language acquisition    AZ – adds the following language:
 process for young children in which   “Books and instructional
 nearly all classroom instruction      materials are in English and all
 is in English‖                        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 in
                                       English, and children in this
                                       program learn to read and
                                       write solely in English…”
Closing 227‘s Loopholes

  More restrictions on the reasons for ―waivers‖

 CA – ―the child has such special    AZ – ―the child has such special
 physical, emotional,                and individual physical or
 psychological, or educational       psychological needs, above and
 needs that an alternate course of   beyond the child’s lack of
 educational study would be better   English proficiency, that an
 suited to the child‘s overall       alternate course of educational
 educational development.‖           study would be better suited to the
                                     child‘s overall educational
                                     development and rapid acquisition
                                     of English.‖
Closing 227‘s Loopholes
  More Administrative Hoops to jump through
 CA – ―A written description of      AZ – ―A written description of no
 these special needs must be         less than 250 words
 provided and any such decision is   documenting these special
 to be made subject to the           individual needs for the specific
 examination and approval of the     child must be provided and
 local school superintendent…‖       permanently added to the
                                     child’s official school records
                                     and the waiver application
                                     must contain the original
                                     authorizing signatures of both
                                     the school principal and the
                                     local superintendent of schools.
                                     Any such decision to issue an
                                     individual waiver is to be made
                                     subject to the examination and
                                     approval of the local school
Closing 227‘s Loopholes

  Completely takes away parental choice

 CA – ―The existence of such           AZ – ―Teachers and local school
 special needs shall not compel        districts may reject waiver
 issuance of a waiver, and the         requests without explanation
 parents shall be fully informed of    or legal consequence. The
 their right to refuse to agree to a   existence of such special
 waiver.‖                              individual needs shall not
                                       compel issuance of a waiver,
                                       and the parents shall be fully
                                       informed of their right to refuse to
                                       agree to a waiver.‖
Other changes
  Complete overhaul of Arizona system
    Repeals all statutes governing the education of
     English learners including standards of student
     assessment, teacher training, program availability,
     parental choice, and other civil rights guarantees
    Need ¾ supermajority vote in state legislature to

     make changes that ―further the purposes‖ of the
     law; Need statewide ballot initiative to make
     substantial changes.
Arizona Native American Languages and Prop. 203

  Arizona tribes were led to believe that these efforts could continue.
  Received assurances from the Proposition 203 campaign leadership
  that the measure would not apply to indigenous languages;
  moreover, following the proposition‘s passage, the Arizona Attorney
  General‘s Office had published an Opinion indicating that Native
  American language revitalization efforts were protected by federal
  law,18 and therefore could not be prohibited under the English only
  provisions of Proposition 203.

  In February 2004, the Assoc. Supt indicated that only schools run by
  the federal Bureau of Indian Affairs (BIA) are exempt from
  Proposition 203. She asserted that ―if a public school has a large
  Native American student population, it must still adhere to the
  provisions set forth in Proposition 203 regardless of whether or not
  that school is on a reservation.‖

  Additionally, because state-sanctioned oral tests of English measure
  English language ability concurrently with aspects of academic
  content, and are not specifically developed to assess language
  proficiency among Native American children, many monolingual
   Arizona Native American Languages and
             Prop. 203( Cont‘d)

Native American children do not score at the prescribed levels
to qualify for a waiver. Thus, it appears unlikely at this time
that public schools serving Native American communities will
be able to implement programs preserving indigenous

Navajo and other indigenous peoples have developed
numerous language revitalization programs in schools on and
off the reservation, sanctioned and supported by the federal
Native American Languages Act (NALA) of 1990.

These programs often use immersion techniques to teach
monolingual English speakers of Native American descent the
language of their heritage.
SEI Provisional Endorsement (15 Clock
Who must obtain a state mandated endorsement?
 All classroom teachers, supervisors, principals and superintendents.
What and When?
For staff all classroom teachers, supervisors, principals and superintendents
certified before 8-31-06 and do not possess full ESL/Bilingual Endorsement
What will fulfill the requirements for the 15 hrs at this time?
 A full ESL or Bilingual Endorsement or a Provisional Endorsement (must
    have a foundations class or GLAD training
What is the difference between the newly mandated SEI
endorsement and the ESL or Bilingual Endorsement?
The SEI endorsement provides a basic understanding or awareness level of
SEI methods on the state‘s ELL proficiency standards; the ESL/ Bilingual
Endorsement provides theoretical insights and practical approaches for
working with ELLs
What authority created the state mandated SEI endorsement?
    Arizona Prop. 203 (2000)
    The Arizona Revised Statutes (ARS) 15-756 and 15-1625 (2001)
    Flores v. Arizona 2000 and the Flores Consent Order
    Federal No Child Left Behind Act (2001)
    Changes in the AZ State School Board Rules
      Curricular Framework for Provisional Structured English Immersion (SEI)
               Endorsement Training (15 Hours)SBE approved 1/24/2005
           At the end of 15 clock hours* of instruction, participants will be able to:

ELL Proficiency Standards              Assessment                   Foundations of            SEI Strategies
          Objectives                   Objectives                   SEI Objectives            Objectives
 Minimum: One (1) Clock          Minimum: One (1) Clock         Minimum: One (1) Clock        Minimum: Eight (8) Clock
           Hour                            Hour                           Hour                    Hours

1.   Examine the format and     1.   Analyze the content       1.   Know the legal,           1.     Identify and use multiple
     alignment of ELL                and use of the Stanford        historical and                   strategies to improve
     Proficiency Standards to        English Language               educational reasons              student achievement.
     the Arizona Language            Proficiency (SELP)             for SEI.                        Integrate:
     Arts (Listening &               Assessment in guiding                                           Comprehensible input;
     Speaking, Reading, and          ELL instruction.                                                Ongoing, specific and
     Writing) Academic                                                                             immediate feedback;
     Standards.                                                                                      Grouping structures and
2.    Use ELL Proficiency       2.   Discuss the relevance     2.   Know basic SEI                   Building background
     Standards to plan,              of state-mandated              terminology.                   and vocabulary
     deliver and evaluate            achievement for ELLs.                                         development; and,
     instruction.                                                                                    Student engagement.

3.    Demonstrate the           3. Identify and use            3.   List language
     integration of ELL             alternative methods of          Acquisition theoretical
     Proficiency Standards in       assessment.                     principles.
     all content areas.
                                                               4.   Define the role of
                                                                    culture in learning.
 Provisional Status Problems
Teacher in Training Status in CA       Provisional Status in AZ
       Doesn‘t require any                   15 hrs approved by judicial
        certification                          mandate
       They are permitted based
        on ―mere signed agreement
        to to obtain the needed
        training within 2-3 years–
        conditionally allowed.
       Unlike other certifications,
        this is not monitored by
        CCTC; rather this was
        allowed in as part of the
        CDE‘s ―plan to remedy‖
        shortage of teachers‖
       Was deemed to be out of
        compliance by CCR
    Failing to Meet Standards of the
        Second Castaneda Prong
In AZ, it is not entirely clear what the distinction is between SEI and Mainstream
instruction judging from the instructional delivery as reported by teachers

Judging by the teacher responses on the key program elements, there is not
much indication that even the SEI program is being implemented properly, thus
failing on the second Castaneda prong

These elements include: instructional materials, instructional strategies, teacher
training broadly speaking; these elements are directly affected by and intersect
with resource adequacy

If SEI is the program of choice, what evidence is there that shows students are
receiving adequate instructional quality that is characteristic of its program
distinctives? What does an exemplary SEI program look like and what indicators
are there to document this?

Does CA face similar difficulties found in Williams case?
Preliminary Findings from Research: Impact of Current
        State Policies on Instructional Practice

   Go beyond the State‘s ―numbers‖ and labels.
   Identified ELL impacted elementary school districts
       Tested 20 or more 3rd grade ELLs
   Identified school in that district which tested the
   most ELLs
   Asked principal to recommend a teacher who
       Has lots of ELLs in her/his classroom
       Is experienced teacher of ELLs
   Survey given to teachers over the phone
       Audio recorded to also capture teachers explanations for
        their responses, reactions to certain questions, and
        responses to open-ended type questions
   59 districts/schools identified
       29 teachers surveyed to date
Availability of Resources and
Instructional Practice Under 203
  ESL Direct Instruction
  Adoption of School Curriculum
  Implications for the distinctions between SEI and
  One way to evaluate 203
  New adopted programs used to raise test scores
  Critical Resources and the Use of those Resources
      26 of 29 did purchase new test prep materials
      19 answered that they were at least somewhat effective
      18 spend at least 1 hr/day on test prep in the month of test
       and 10 at least 2 hrs a day; 6 at least 3 hrs a day.
Effects on Instructional Time
on Subjects
  Time spent on following on subjects:
      Major increase- Reading, Writing (12), Math (16) SDAIE (12 of 29)
      Some increase- Writing (10), Math (7)
      No change- ESL (13), Art (15), Music (15), PE
      Major Decrease- Science (17), Social Studies (19), Art, Primary Language
       support (16)
  Time spent on various instructional strategies:
      Increase- small group (15), whole group (13), cooperative learning (10),
       multiple choice practice, class discussions (11 to 6), shared reading; guided
       reading; reading basils, direct phonics (20), phonics worksheets,
       reading comp worksheets, grammar worksheets, shared modeled reading,
       independent seat work, math worksheets, manipulatives, test
       preparation, test prep worksheets, skill and drill exercises
      Mixed- hands-on, learning centers 13, but 10 increased), authentic
       assessment, read-alouds, accelerated reader, journal writing; writers
       workshops, spelling tests and worksheets
      Decrease- silent reading, science experiments, movies/ video, field trips,

For Equity and Adequacy (The dangers of
universalizing equity)
The Problem of the Provisional License/
Distinctives Between SEI and Mainstream
Teacher Quality
Court Precedents that have influence both AZ
and CA under the 9th Circuit Court of Appeals

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