Ninth Circuit Rejects Challenge to Arizona's Newest English Language Learner Program

The 9th Circuit Court of Appeals has issued a new decision in Flores v. Arizona, the long running English Language Learner ("ELL") litigation in Arizona. The Ninth Circuit upheld the district court’s finding that the state was taking “appropriate action” to meet the educational needs of ELLs and, thus, in compliance with the Equal Educational Opportunities Act. This recent litigation stems from the remand by the Supreme Court in Horne v. Flores in 2009, where the Court had found that the lower court erred in failing to sufficiently consider whether changed circumstances entitled the state to an equitable modification of the existing consent decree in the case.

In this recent round of litigation, the plaintiffs challenged the State’s newest ELL program.  The new program requires ELLs to be separated from their classmates for four hours per day to focus solely on learning English. Plaintiffs argue this violates the Equal Educational Opportunities Act because students do not get to make up the subject matter they miss while in regular education while they are in their English acquisition classes.  In other words, they receive less academic content than their classmates. The Ninth Circuit disagreed and also indicated the challenge was premature in any event: while "[t]he Flores Plaintiffs appear to be challenging the four- hour model as facially violating the EEOA,” they are actually “attacking the implementation of the four-hour model” after just one year of the program.  The relevant three-prong standard for evaluating ELL programs includes a timing element, under which states and districts are afforded an opportunity to demonstrate that the program works.  See Castenada v. Pickard, 648 F.2d 989 (5th Cir., 1981).