The Implications of the Flores Decision

• In Event: Roundtable Session 124
  In Roundtable Session: The Impact of a Restrictive Language Policy on the Education of English Language Learners

Abstract

In 1992 a class action lawsuit was brought by Miriam Flores, a 4th grader in the Nogales School district, against the district and the state of Arizona for failing to provide her with an appropriate education to meet her needs as an English learner (EL). Since the district’s and state’s investment in the education of ELs was virtually nil, it appeared evident that ELs were not receiving the education mandated under the Equal Educational Opportunity Act (EEOA), which requires that the district “take appropriate action to overcome language barriers that impede equal participation” in instructional programs (20 U.S.C. § 1703[f]). In 2000, Arizona was ordered to increase its funding for EL students to a level that bore a rational relationship to the needs of the students. Arizona failed to respond for years, and the case finally ended up in the Supreme Court in 2009.
The Supreme Court decision in Horne v. Flores (formerly Flores v. Arizona)
came in June of 2009 seriously weakening the meaning of the EEOA by declaring that the federal court did not have the authority to require Arizona to increase its funding for EL students. The Court argued that “money doesn’t matter” for educational quality. It also asserted that Arizona had adopted a “significantly more effective” program of instruction by abolishing bilingual education in favor of Structured English Immersion (SEI). The High Court then remanded the case back to district court for Arizona to demonstrate that it was indeed meeting the needs of EL students through the program it had instituted during the period 2000 to 2009. The SEI program, which segregates ELs for most of the school day into classrooms where they are drilled in English for 4 hours daily with no access to the core curriculum, and with other children who have similarly low proficiency in English is at the heart of the remanded case, which was heard in the fall of 2010. Because the state had virtually no reliable data on how the instruction was working for ELs, 21 researchers from four universities stepped up to conduct the research pro bono. They produced nine studies that were instrumental in bringing the Department of Justice into the state and that provided solid evidence of the overall weakness of the instructional program.
As of July 22, 2011, there is still no decision coming from the federal court about the viability of Arizona’s SEI program. If the court finds that Arizona’s policies are defensible, it can set precedent for (1) segregating English learners from their English speaking peers for years; (2) allowing schools to forego subject matter instruction until students are fluent in English, which can take many years; (3) precluding EL students from graduating high school because of inability to take required courses, and undermining the very meaning of Lau v. Nichols –the Supreme Court decision that ordered schools in 1974 to provide access to the same curriculum for ELs that all other students had. We will surely know the impact by April of 2012.

Author

• Patricia C. Gandara, University of California - Los Angeles