State education officials agreed Friday to scrap a policy that federal officials said kept thousands of children out of courses they needed to help them learn English.
The deal, announced by the U.S. Department Justice, reinstates what had been the state's practice prior to 2009 of using three questions to identify which students from homes where Spanish is spoken should be assessed to see if they should be classified as "English Language Learners'' who need special assistance. Friday's agreement does not affect the ongoing lawsuit in federal court of whether the state is providing enough resources to students in the ELL program. That case continues in Tucson.
But it does resolve an immediate issue that attorney Tim Hogan, who is representing the parents in that lawsuit, had asked U.S. District Court Judge Raner Collins to resolve. Hogan agreed to withdraw that complaint last year after the Department of Justice got involved in the dispute.
Central to the issue is a federal law that requires states to ensure that all students have an opportunity to learn English. Arizona provides special "structured English immersion'' classes for students who need language skills. But that first requires that they be identified.
Prior to 2009 the Department of Education used three questions for screening, asking parents the primary language used in the home, the language most often spoken by the student, and what is the first language the youngster learned.
That year, then-state School Superintendent Tom Horne decided to reduce that to the single question of the primary language spoken by the student.
According to the Department of Justice, if the answer to this question was "English,'' then state education regulations prohibited school districts from even conducting an assessment of the youngster's English proficiency. The only exception would be if a teacher documented specific language problems on an official state form and then met personally with parents to obtain permission to do an assessment.
Horne said at the time the three-question test was putting students in ELL classes who did not belong there.
For example, he said, there were students from Indian reservations who, because they come from homes where a language other than English was spoken, then had to be tested. Horne said some youngsters who failed the test for academic reasons then were classified as English learners even though that was the only language they spoke.
Horne also said schools have a financial incentive to both classify students as English learners and keep them in the program because they get additional state aid.
Federal officials, however, said the change in policy was dramatic: The year it was implemented, the number of students classified as English learners was less than 100,000, a drop of about 33,000 from the prior year.
According to the Department of Justice, school districts attributed at least part of the decline to the single-question screening. That, the agency said, resulted in the state failing in its legal responsibility to identify and serve all eligible students.
Federal officials, in their prepared statement, also faulted the fallback of a teacher-referral process, saying it "unnecessarily delayed'' identifying students.
The deal should have nearly immediate effects: It requires the state to make the change within two weeks and notify local schools of the new requirement. It also requires schools to go back and figure out who may have been screened out with the single-question method.
"Proper identification of ELLs is the essential first step in ensuring that students receive the services they need to help them overcome language barriers and participate equally in the instructional process,'' said Thomas Perez, assistant attorney general for the department's civil rights division said in a prepared statement. Perez also praised John Huppenthal, elected last November as state school superintendent, for agreeing to reinstate the three-question assessment and seeking those who were missed by the one-question process.
Huppenthal, in his own prepared statement, said his agency wants to ensure that all students who need help learning English get enrolled in the English immersion classes.
"With that goal in mind, I directed the Department to move back to the three-question (assessment) to ensure that all students have access to the educational resources they need to be successful in school,'' the statement read.
But Andrew LeFevre, Huppenthal's press aide, said the move is not an admission that the one-question assessment violated any laws or regulations.
Horne declined to comment Friday on the decision of his successor to settle, saying his new position as state attorney general makes him that agency's lawyer.