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April 25, 2012

A Colorado trial court has explained the educational needs of students who are "English language learners" (ELLs) and the significant achievement gaps resulting from underfunding of ELL programs in Colorado. State funds barely cover the cost of administering the English learner test.

In evaluating the constitutionality of Colorado's school funding system pursuant to the Colorado Supreme Court's 2009 decision in Lobato v. State, the trial court on remand undertook a thorough study of six types of "special student populations," including children learning English.

Court Findings: Legal Requirements and Educational Needs of ELL Students

Colorado has over 100,000 ELL students in grades K-12. ELLs represent 12% of the student population and are served by 156 of Colorado's 178 school districts. The ELL population in Colorado has grown by 250% since 1995 while the overall K-12 population has grown by only 12%.

Colorado law requires districts to identify, track and annually assess ELL students and to implement a research-based program to serve such students. The federal No Child Left Behind (NCLB) law likewise requires school districts to use scientifically-researched best methods and approaches for teaching ELLs. Under NCLB, school districts must have programs to ensure that ELLs not only attain English language proficiency but also develop high levels of academic content knowledge and meet state achievement standards.

Research establishes that the most effective programs for ELLs make use of children's native languages. Teaching children to read in their native languages enhances subsequent acquisition of literacy in English; ELLs should have access to core academic subjects while they are still learning English.

It takes ELL children between four and seven years to fully develop "academic English." Research shows that intermediate-level ELLs, that is, students who know the basics of English but have not mastered the more complex aspects of the language, need the most instructional support. These students, also known as LEP (limited-English proficient) students, are additionally challenged by core academic content that is increasingly more difficult at higher grade levels.

Bringing all ELL students in Colorado up to mandated proficiency levels "requires comprehensive programs across many grade levels; in-school and out-of-school experiences, trained teachers, a good curriculum, instructional materials, and good parent involvement," in the words of the Lobato court.

ELL Education in Colorado

Although certification in bilingual education or English as a second language is important for teachers of ELL students, Colorado does not require school districts to hire teachers with such certification. Nor does Colorado widely implement the dual language programs that are shown to accelerate and enhance academic achievement of ELLs. Colorado has approximately 2000 certified ELL teachers to serve 100,000 ELL students in the state.

The majority of Colorado ELL programs are targeted at beginning-level ELLs, with less support for the LEP students who actually need the most support. Not surprisingly, achievement gaps between ELLs and native English speakers in Colorado tend to widen as students get older and progress into the higher grades. Achievement test scores of Colorado LEP students decline significantly across grade levels in reading, writing, and mathematics and are significantly lower than average scores statewide. In middle and high school, fewer than twenty percent of LEP students score at proficient levels in reading; only five to eight percent are proficient in writing, and less than ten percent are proficient in math. The graduation rate of ELL students in Colorado for the year 2009 was 53% as compared to the state average graduation rate of 75%.

Funding Shortfall

The Colorado English Language Proficiency Act (ELPA) and NCLB provide funding for ELLs in addition to the regular per pupil expenditures available to all children in the state. Even taking all funding sources into account, however, the court found "insufficient funding in Colorado to provide the types of effective instructional and support programs for ELLs mandated by NCLB, supported by research, and recommended by [the Colorado Department of Education] in its own guidebook ... State funds barely cover the costs of administering the Colorado English Language Assessment..."

State ELPA money is only available to a student for the first two years he or she is in Colorado, a time limit "far short of the four to seven years that research has established for acquisition of full proficiency" as well as "arbitrary and irrational," in the court's words. The current funding level provided for ELLs in Colorado bears "no relationship" to the cost of meeting the state's own standards and requirements and makes it unlikely that the achievement gap between ELL students and native English speakers will close in the foreseeable future.

Court's Analysis and Holding

The Education Clause of the Colorado Constitution makes the General Assembly responsible for providing "a thorough and uniform system of free public schools" throughout Colorado.

As explained by the court, beginning in 1993, the General Assembly began a series of legislative reforms ultimately resulting in a "pervasive system of content standards, assessments, school and school district accreditation and accountability, and teacher effectiveness standards" for Colorado schools. The elements of this "standards-based education system," according to the court, "constitute the current legislative specification of the thorough and uniform system of public education mandated by the Education Clause."

Following the Colorado Supreme Court's 2009 holding in Lobato v. State, the court set out to determine whether Colorado's public school financing system was "rationally related to accomplishing the mandates of the standards-based education system." The court found such a rational relationship lacking, as "no effort has been made" to determine the resources needed to accomplish standards-based education goals or to institute and fund a system that provides the necessary resources.

When Colorado enacted its Public School Finance Act (PFSA), the court explained, the statewide base funding amount was determined "by working backwards from the total funding that [the General Assembly] intended to appropriate," with "no effort to analyze the relationship to the actual costs to provide an education of any particular quality." In blunt language, the court noted that "[t]he PFSA was adopted before the implementation of the standards-based education system. If only for that reason, it cannot possibly relate to funding the costs of that system. ... the PSFA funding levels are now and have since inception been completely disconnected from the real, knowable funding needs of a thorough and uniform system of public education."

The court further found that Colorado's "irrational and inadequate school funding system" violates the Local Control Clause of the Colorado Constitution, which gives local boards of education control of instruction in the public schools of their respective districts. Without adequate funding, school districts are prevented from implementing the mandate of standards-based education at the local level.

Court-Ordered Remedy

Having concluded that "the entire system of public school finance" in Colorado is unconstitutional, the court directs the state to revise the system to assure that "adequate, necessary, and sufficient funds are available in a manner rationally related to accomplish the purposes of the Education Clause and the Local Control Clause." Recognizing the limitations of its own role, the court specifically notes that such revisions "are appropriately legislative and executive functions in the first instance." The decision allows Colorado to keep its current financing system in effect so as to give the State "a reasonable time" to create and implement a system of public school finance that meets Constitutional standards.

It remains to be seen how the Colorado General Assembly will respond to the court order in the area of ELL education funding. The trial court decision offers a clear guiding light in the process of education funding reform in Colorado.

Education Justice Press Contact:
Molly A. Hunter, Esq.
Director, Education Justice
email: mhunter@edlawcenter.org
voice: 973 624-1815 x19

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