At least that's how it appears to me. Almost everyone else has moved onto the stimulus and the economy, but not SCOTUS. See this report from Ed Week blogger Mark Walsh??on yesterday's hearing in Flores v. Horne. First, note this veiled reference to growth models:
Kenneth W. Starr, the lawyer representing Republican state legislative leaders who are seeking relief from a federal court order that effectively is forcing the state to spend more on ELL programs, told the justices that English learners "are, in fact, making progress" under the program funded by the legislature.This drew a sharp response from Justice Stephen G. Breyer, who cited detailed test results showing that English learners in the Nogales, Ariz., school district, where the class action began in 1992, still lagged their peers around the state.
"You are right," Breyer said to Starr during the oral arguments in Horne v. Flores (Case No. 08-289). "They have made progress, but they aren't quite home yet."
"But not home yet, your honor, is in fact the key question. What is home?" replied Starr.
Now, let's pause for a moment. As Joshua Dunn, co-author of Education Next's Legal Beat column??just wrote to me, "I was struck by Breyer's statement that Arizona had made progress but was not 'home' yet--a judgment that appeared to be based on disparate test scores between ELL students and everyone else! ??Talk about a recipe for unending judicial supervision."
Indeed, if Breyer expects to see the "achievement gap"??between English language learners and other students closed entirely, he's going to be waiting a very, very long time. However, there's one obvious way Arizona could fix this problem overnight: lower??its standards so that all students, including ELLs, could easily reach "proficiency."??And voila, the gap will close, the sun will shine, and the students will be "home." (Now add judicial reasoning to the long list of perverse incentives around "proficiency.")??????
Scalia continued the focus on NCLB:
"Why shouldn't the courts decide that what constitutes a good-faith effort [under the EEOA] is pretty much what Congress thought was necessary in the No Child Left Behind Act, and if you comply with that, you're doing okay?" Justice Scalia said, echoing a point made by the legislative leaders and Horne that federal approval of the state's ELL program under NCLB should be sufficient to satisfy the civil-rights law.
Still, Chief Justice John Roberts brought it back to the economy in the end:
May a district court say, he asked, "You've got to spend this much money on this program, and I don't care what it means for jails, roads, anything else, when there are profound changes in economic circumstances of the sort everyone's experiencing lately?"
Now that's a good question.
