Friday, July 19, 2013

Court Rejects English Language Learner and Segregation Claims, But Accepts Discrimination in Gifted and Talented

After eight years of litigation against a Chicago area school district, the Mexican American Legal Defense and Education Fund has a final decision, but it was not the one it was wanting.  The district court in McFadden v. Board of Educ. for Illinois School Dist. U-46, 2013 WL 3506010 (N.D.Ill.,2013), ruled against plaintiffs on their two major claims: segregation and an inadequate English Language Learner (ELL) program.

I found the court's opinion curious, however, in its tone and approach to the evidence.  In regard to plaintiffs' challenge to the student assignment and facilities plan, the court wrote:

It is clear to the court, considering all of the evidence and the extensive testimony presented at the trial, that the professional staff of the District, including its superintendent and board, were dealing with an increasing population generally, an increasing number of students who required special language support, a budgetary crisis, and an active, involved community. Regardless of the decisions ultimately made by the District, some portion of the population would be unhappy. The ultimate decision to adopt a neighborhood school concept that minimized busing and allowed children to attend schools nearer to their homes was not objectively unreasonable, nor in this court's opinion caused by any racial animus or preference by the District.

The court is correct that some group will always be unhappy, but this does not answer the question of whether a school district has catered to one segment of the population because it wants to make it happy and is less concerned about making others unhappy.  As I argued in my early scholarship, the state just as surely violates equal protection by being unsympathetic or deliberately indiffernt to a particular racial or ethnic group's interests as it does by intentionally targeting that group for unequal treatment.  The court in McFadden pays little attention to this principle and or the fact it is consistently racial and ethnic minorities who must settle with being "unhappy" with school decisions.

The court's ELL analysis, likewise, reads as though the court was more than willing to excuse district failures.  For instance, it writes "no program of this size can be expected to be free of criticism or deficiencies."  Sure, criticisms alone don't tell us much, but if deficiencies exist, a district must justify them under the requirements of the Equal Education Opportunities Act and the prevailing three-prong standard from Castenada v. Pickard.

Applying that standard, the court wrote, "although plaintiffs have identified a number of problems and concerns about the ELL program as it existed prior to the close of discovery in 2009, the court finds that by that time the District had established and recognized programs in place to educate its non-English speaking students in its educational programs."  Again, the question remains as to whether those programs were effective in helping students to overcome language barriers, not simply whether programs were in place.  More poignantly, did the new programs remedy the problems that plaintiffs had identified through discovery?

One problem plaintiffs identified was insufficient numbers of qualifed ELL teachers.  On this question the court wrote:

Plaintiffs also complain about the lack of leadership and deficiencies in professional development and in hiring qualified ELL teachers. The court has reviewed this evidence, and finds that plaintiffs have failed to prove deficiencies sufficient to constitute violations of the EEOA. It should be noted, as recognized by a number of courts, that there is a national shortage of qualified ELL teachers, and that the District has gone to great lengths to recruit such teachers for its increasingly diverse student body.  

First, the court cites to dated cases for the proposition that there is teacher shortage.  Even if there still is a general shortage, undifferentiated national trends tells us little of whether this school district has a justification for not complying with an educational duty.  Second, the court in Teresa P. v. Berkeley, to which the court cites, excused the failure to hire certified teachers because other metrics suggested the teachers were competent and, more important, the data suggested that student achievement was high in the district.  Thus, the lack of certified teachers was not interfering with the educational program.  In other words, there is no free standing exemption from hiring qualified language program teachers, which the McFadden court implies.  In fact, the failure to hire appropriate staff was one of the clearest and most powerful violations recognized in the seminal Castaneda decision, which McFadden indicates it is applying.  The court in McFadden does not discuss student achievement, nor does it offer a detailed justification of the district's hiring woes.

Finally, the court indicates:

Plaintiffs also attack the District's alleged violation of the “90% rule,” a requirement by the ISBE regulations that ELL classes be 90% of the size of the general classrooms in the building in which they are situated. First, a violation of a state regulation does not necessarily equate to a violation of the EEOA. Plaintiffs are required to prove that such a violation, if it occurred, impeded the students' ability to learn English or participate equally in the District's instructional programs. Although plaintiffs have introduced evidence that the 90% rule was violated in certain instances, the evidence fails to show a systemic failure that results in an EEOA violation. 

Here, the court appears to muddle its analysis.  It is correct that a violation of the 90% rule does not automatically equate with an EEOA violation, but the Castaneda standard's second prong requires a state or district to properly implement its chosen ELL program.  Schools have wide discretion in chosing their method of ELL instruction under Castaneda's first prong, but once they choose a method, Castaneda indicates they must implement it consistent with their chosen education theory.  If the 90% rule is the state and district's chosen method, they are expected to abide by it.  If they violate it, the burden presumably should be on the district to justify its deviation, not on the plaintiffs to show that the deviation was causing special harm.

The district court's analysis of the gifted and talent program was straightforward.  The school district was placing ELL and non-ELL students into different gifted and talented programs, even including students who had phased out of the ELL program.  The court found this practice discriminatory and unable to pass strict scrutiny.

    --db

 

 

http://lawprofessors.typepad.com/education_law/2013/07/court-rejects-english-language-learner-and-segregation-claims-but-accepts-discrimination-in-gifted-a.html

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