ELL Programs: New Warnings from OCR

The ongoing legal uncertainty surrounding the sufficiency of the English language learner (ELL) program in Arizona provides school districts a reminder about the challenges they face when their ELL programs come under attack. Two recent Department of Education, Office for Civil Rights (OCR) opinion letters may breathe new life into a legal challenge to the Arizona ELL program, despite prior signals that the battle over the programs was nearing an end. The ongoing nature of the legal challenges to this program is a reminder that taking proactive steps is of paramount importance, especially in these difficult economic times when cutting programs is more commonplace.

The two OCR letters addressed the sufficiency of the Arizona Department of Education’s Home Language Survey (HLS) and exiting procedures. The HLS was reduced from a three-question survey, which asked for the student’s first acquired and most often used language as well as the home language, to a one-question survey, which asked only for the student’s “primary language.” A complaint with OCR also alleged that the State’s reliance on certain test data was misplaced because it caused the State to classify ELL students as “proficient” in English and exited them from the ELL program before they were actually proficient. In two separate opinion letters [1 and 2], OCR agreed that the two policies violated Title VI of the Civil Rights Act of 1964.

This is not the first challenge that the Arizona ELL program has faced. Opponents have argued that an Arizona school district and the State were arbitrarily funding ELL instruction in violation of the Equal Educational Opportunities Act of 1974 (EEOA). A court agreed with the opponents, and ordered the school district to take “appropriate action” to address the needs of ELL students. As we reported in an earlier alert, in June 2009 the United States Supreme court signaled there might be some end in sight to the legal battle, finding that the State and school district could show that there had been “appropriate action” by pointing to a number of “important factual and legal changes,” not just funding changes. The case was remanded to the trial court to determine whether any such factual or legal change had occurred. It is unclear how the evidentiary hearing at the trial court level will be affected by the recent OCR opinion letters.

Although it is not evident that the programmatic changes that led to the OCR letters were the result of program reductions, this case serves as an important reminder to school districts that may be considering cuts to their ELL programs. When making changes to seemingly insignificant elements of an ELL program, such as the HLS and exit criteria, school districts should keep all legal requirements, including Title VI, in mind.