Horne, et al v. United States Department of Education, et al., No. 2:2008cv01141 - Document 33 (D. Ariz. 2009)

Court Description: ORDER granting Dfts' Renewed 23 Motion to Dismiss Case. Directing the clerk to enter judgment accrodingly. Signed by Judge Mary H Murguia on 12/21/09.(ESL)
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Horne, et al v. United States Department of Education, et al. 1 Doc. 33 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 Tom Horne, Arizona State Superintendent) of Schools; Arizona State Department of) ) Education, ) ) Plaintiff, ) ) vs. ) ) United States Department of Education,) Arne Duncan, in his capacity as Secretary) of the United States Department of) ) Education, ) ) Defendant. ) ) No. CV-08-1141-PHX-MHM ORDER 18 19 20 Currently pending before the Court is the United States’ Renewed Motion to Dismiss 21 Plaintiffs’ Complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. After 22 reviewing the record and holding oral argument, the Court issues the following Order. 23 I. Statutory Background 24 The Elementary and Secondary Education Act (ESEA) permits states to voluntarily 25 participate in a federal-state partnership in the area of public education. In return for federal 26 monies, participating states must agree to comply with federal requirements that are meant 27 28 Dockets.Justia.com 1 to enhance the quality of elementary and secondary education and to further academic 2 achievement. 20 U.S.C. § 6301, et. seg. 3 The No Child Left Behind Act amended the ESEA to “ensure that all children have 4 a fair, equal and significant opportunity to obtain a high-quality education and reach, at a 5 minimum, proficiency on challenging state academic achievement standards and state 6 academic assessments.” Id. 7 funding they receive, NCLB requires states to make annual assessments of all public school 8 students and to use the results of these assessments in determining whether schools and 9 districts have made adequate yearly progress (AYP) towards the NCLB’s overriding goal of 10 As a means of holding states accountable for the federal academic proficiency for all students. 11 Title I of the ESEA, as amended by NCLB, contains several programs geared toward 12 boosting the educational achievement of disadvantaged students. 20 U.S.C. § 6301(2). To 13 receive a federal grant under Title I, Part A, a state must submit a plan, developed by the state 14 educational agency, that demonstrates the following: (1) that the state has adopted 15 challenging academic standards that will apply to all schools and children in the state, 20 16 U.S.C. § 6311(b)(1)(A)-(B); (2) that the state has implemented high-quality yearly academic 17 assessments to measure students’ performance in mathematics, reading or language arts, and 18 science; and (3) that the state has developed a “single, statewide State accountability system” 19 for holding local educational agencies and schools accountable for making AYP. Id. States 20 are largely responsible for defining AYP, but the definition must “appl[y] the same high 21 standards of academic achievement to all” public elementary and secondary school students 22 must be based on statistically valid and reliable method of measuring student progress, and 23 must include “separate measurable annual objectives for continuous and substantial 24 improvement” for various groups of students, including one group comprised of all public 25 elementary and secondary school students, as well as certain subgroups of students, including 26 limited English proficient students (“LEP”). 20 U.S.C. § 6311(b)(2)(C). For a school or 27 district to make AYP, both the “all students” group and the LEP subgroup, along with the 28 other subgroups of students identified in § 6311(b)(2)(C)(v), must meet the academic -2- 1 objectives set by the state. Id. § 6311(b)(2)(I)(i). Alternatively, if a given group does not 2 meet its annual objective, a school or district can make AYP if the percentage of students in 3 the group measured “below proficient” on the state assessments is at least 10 percent lower 4 than it was in the preceding school year. Id. 5 In addition to directing that the academic achievement results of LEP students be 6 included in AYP calculations, both as part of the group comprised of all students and as part 7 of the LEP students subgroup, § 6311(b)(2)(C)(v)(I)(dd), NCLB further directs that LEP 8 students “shall be assessed in a valid and reliable manner and provided reasonable 9 accommodations on assessments . . . including, to the extent practicable, assessments in the 10 language and form most likely to yield accurate data on what such students know and can do 11 in academic content areas, until such students have achieved English language proficiency.” 12 § 6311(b)(3)(C)(ix)(III); see also 34 C.F.R. § 200.6(b). LEP students must be assessed with 13 tests written in English once they have attended school in the United States for three or more 14 consecutive years, unless an extension of time is warranted. 20 U.S.C. § 6311(b)(3)(C)(x); 15 see also 34 C.F.R. § 200.6(b)(2)(i). 16 Under NCLB, schools that fail to make AYP for certain time periods may be 17 identified, in increasing levels of severity, for “improvement,” “corrective action,” or even 18 “restructuring.” 20 U.S.C. § 6316(b)(1)-(8). Before identifying the aforementioned actions, 19 the local educational agency must provide the school with the academic assessment date on 20 which the identification is based. § 6316(b)(2)(A). The school may then appeal the 21 identification to the local educational agency on the ground that the proposed identification 22 “is in error for statistical or other substantive reasons.” § 6316(b)(2)(B). 23 II. Legal Standard 24 A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in the 25 complaint. A Rule 12(b)(6) dismissal is proper only where there is either a “lack of a 26 cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal 27 theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The Ninth 28 Circuit has stated that “[t]he issue is not whether a plaintiff's success on the merits is likely -3- 1 but rather whether the claimant is entitled to proceed beyond the threshold in attempting to 2 establish his claims.” De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978). The Court 3 must determine whether or not it appears to a certainty under existing law that no relief can 4 be granted under any set of facts that might be proved in support of plaintiffs’ claims. Id. 5 Rule 12(b)(6) must be read in conjunction with Rule 8(a) which requires “a short and 6 plain statement of the claim showing that the pleader is entitled to relief.” 5A Charles A. 7 Wright & Arthur R. Miller, Federal Practice and Procedure Section 1356 (1990). The notice 8 pleading standard set forth in Rule 8 establishes “a powerful presumption against rejecting 9 pleadings for failure to state a claim.” Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th 10 Cir. 1997). Therefore, a district court does not dismiss a complaint for failure to state a 11 claim unless “it appears beyond doubt that the plaintiff can prove no set of facts in support 12 of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 13 (1957); see also U.S. v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981). 14 III. Procedural and Factual History 15 In 2003, the Arizona Department of Education (“ADE”) engaged in negotiations with 16 representatives from the United States Department of Education (“USDE”) over the 17 assessment of Arizona’s large population of LEP students, who mostly spoke Spanish as a 18 first language. The negotiations were primarily concerned with the effect that an Arizona 19 state proposition, Proposition 203—approved by the voters in 2000—might have on the 20 states newfound obligations under NCLB. See A.R.S. §§ 15-751-757. Proposition 203 21 requires that all children in Arizona public schools be taught in English and that “a 22 standardized, nationally-normed written test of academic subject matter given in English . 23 . . be administered at least once each year to all Arizona public schoolchildren.” Id. 24 According to the State of Arizona, Proposition 203 prohibits ADE from testing LEP students 25 in their native languages for the period of time allowable under NCLB and its companion 26 regulations. See 20 U.S.C. § 6311(b)(3)(C)(III) 27 According to the State of Arizona, representatives from both ADE and USDE entered 28 into an oral agreement that would permit Arizona schools to include their LEP students’ -4- 1 scores as part of their AYP calculation, but any school failing to make AYP because of its 2 LEP students’ scores could appeal that classification under 20 U.S.C. § 6316(b)(2)(B). The 3 basis for such an appeal would be that the score results of LEP students could not be a valid 4 and reliable indicator of academic proficiency because language deficiencies, compounded 5 by Proposition 203, would likely skew the results. Based on this alleged agreement, Arizona 6 submitted its Consolidated State Application Accountability Workbook and agreed to 7 participate in NCLB, thereby accepting federal educational monies. 8 In April 2005, a USDE monitoring team found that ADE was improperly allowing 9 schools to use the appeals process of 20 U.S.C. § 6316(b)(2)(B) to effectively remove the 10 assessment scores of LEP students from the determination of whether a school has made 11 AYP. The team issued a report requiring ADE to cease this use of the appeals and to 12 implement testing practices that minimize language barriers for LEP students during their 13 first three years of English instruction.. 14 In July 2006, ADE filed suit before another judge in the District of Arizona seeking 15 a declaratory judgment that it had properly interpreted the appeals process under 20 U.S.C. 16 § 6316(b)(2)(B) when it excluded LEP students’ assessment scores from the state’s AYP 17 determinations under NCLB. The previous district court judge determined that the case 18 lacked subject matter jurisdiction, since ADE was attempting to bring a pre-enforcement 19 action against USDE. ADE was therefore instructed that before it could bring suit it must 20 file a proposed amendment to Arizona’s state accountability plan. That amendment would 21 include ADE’s preferred interpretation of the appeals process under 20 U.S.C. § 22 6316(b)(2)(B). Should USDE reject the state’s amended plan, the Court noted that ADE 23 could seek judicial review of such an action under the Administrative Procedures Act, 5 24 U.S.C. § 701, et. seq., for such action would constitute final agency action. 25 Thereafter, ADE sought to amend Arizona’s state accountability plan to include 26 “Element 9.2,” which it characterized as an expression of the State of Arizona’s statutory 27 authority to determine appeals. This proposed plan amendment allowed “as grounds for 28 appeal of an Arizona school’s AYP determination, evidence that the school’s failure to make -5- 1 AYP is due to the inclusion of the non-proficient scores of limited English proficient (LEP) 2 students who are in the first three years of enrollment in a school in the United States.” 3 ADE’s apparent reasoning for the inclusion of Element 9.2 was that Proposition 203 placed 4 an onerous burden on the public schools within Arizona—since state law dictates that all 5 LEP students be tested once a year in English. According to ADE, Proposition 203 makes 6 it almost impossible for schools within Arizona to provide “reasonable accommodation” to 7 LEP students as permitted by the ESEA and NCLB, specifically 20 U.S.C. 8 6311(b)(3)(C)(ix)(III). ADE further contends that because Arizona’s LEP students are 9 subject to yearly testing in English pursuant to Proposition 203, if public schools were 10 required to include LEP test scores in their AYP determinations, the number of schools in 11 Arizona that did not meet AYP would be dramatically over-represented, and an ever 12 increasing number of Arizona public schools would be pegged for “improvement,” 13 “corrective action,” or perhaps even, “restructuring.” § 14 The State of Arizona’s proposed amendment, including Element 9.2, was rejected by 15 the Secretary of Education on June 28, 2007. Specifically, the Secretary’s decision stated 16 that “[o]verturning a school’s AYP determination based on the scores of LEP students who 17 have not been in U.S. schools for at least three years . . . does not constitute ‘statistical or 18 other substantive reasons’” within the meaning of 20 U.S.C. § 6316(b)(2)(B). The Secretary 19 indicated that ADE’s proposal “conflicts directly with other provisions” of the ESEA, 20 including the requirement of § 6311(b)(2)(C)(i) that the “same high standards of academic 21 achievement” be applied “to all public . . . school students in the State,” and the requirement 22 of § 6311(b)(2)(C)(v)(II)(dd) that LEP students’ achievement also be measured separately. 23 The Secretary concluded that “[a]llowing Arizona to use the appeals process to exclude 24 many, if not all, LEP students from AYP determinations simply because they have not been 25 in U.S. schools for at least three years would effectively override the explicit statutory 26 requirements that LEP students be included in AYP determinations and that schools be held 27 accountable for their academic achievement.” In other words, USDE determined that the 28 inclusion of test scores of LEP students who have been in United States schools less than -6- 1 three years could not constitute “error for statistical or other substantive reasons,” which is 2 the only permissible ground for a school’s objection to an LEA’s AYP determination 3 pursuant to 20 U.S.C. § 6316(b)(2)(B). 4 After the Secretary rejected the proposed plan amendment, ADE requested an 5 administrative hearing, citing 20 U.S.C. § 6311(e)(1)(E). The Secretary informed ADE on 6 August 6, 2007 that hearings were not available for denials of plan amendments. On June 7 19, 2008, ADE filed the instant suit on June 19, 2008, which did not seek to review the denial 8 of ADE’s proposed plan amendment under the APA, but instead raised a breach of contract 9 claim based on the oral contract that was allegedly made between USDE and ADE. On 10 March 23, 2009, this Court dismissed ADE’s Complaint. At the same time, the Court 11 permitted ADE to file an Amended Complaint for the limited purposes of allowing ADE to 12 challenge USDE’s denial of its state plan amendment under the APA. On April 6, 2009, ADE 13 lodged its Amended Complaint with the Court. On May 28, 2009, the United States again 14 moved to dismiss the complaint. 15 III. Legal Analysis 16 When reviewing an agency’s determination based on statute, courts look first to 17 whether “Congress has directly spoken to the precise question at issue . . . [and] give effect 18 to the unambiguously expressed intent of Congress;” if unclear, then courts must consider 19 “whether the agency’s answer is based on a permissible construction of the statute.” Chevron 20 U.S.A. v. NRDC, 467 U.S. 837, 843–43 (1984). Under Chevron, if the “‘traditional tools of 21 statutory construction’” indicate that “‘the intent of Congress is clear,” then “‘the court, as 22 well as the agency, must give effect’” to that intent. Latino Issues Forum v. EPA, 558 F.3d 23 936, 941-42 (9th Cir. 2009). If “Congress has left a gap for the administrative agency to fill,” 24 Chevron “step two” requires that a court defer to the agency’s interpretation unless it is 25 “‘arbitrary, capricious, or manifestly contrary to the statute.’” Id. Both Parties agree that the 26 Chevron framework should guide the Court’s analysis. 27 The primary statute at issue, § 6316(b)(2)(B), states that if the principal or a majority 28 of parents of a school believe that the AYP label is in error for statistical or other substantive -7- 1 reasons, “the principal may provide supporting evidence to the local educational agency, 2 which shall consider that evidence before making a final determination.” See 20 U.S.C. § 3 6316(b)(2)(B). 4 The United States argues that its denial of Arizona’s plan amendment should be 5 upheld under Chevron step one because Element 9.2 of the plan conflicts with the clear 6 language of the ESEA. Specifically, the United States argues that the ESEA requires any 7 state that receives a grant under its provisions to implement “yearly” academic assessments 8 of “all students,”20 U.S.C. § 6311(b)(3)(A); to use those assessments to measure the yearly 9 progress of each public school, id. § 6311(b)(2)(C)(iv); and to define AYP in a way that 10 applies the same achievement standards to “all” students, including LEP students, id. § 11 6311(b)(2)(C)(i), (v)(II)(dd). 12 According to the United States, when viewed in its entirety, the statutory scheme 13 enacted by Congress, did not intend for the appeals process of § 6316(b)(2)(B) to override 14 the express, essential requirement that LEP students be included in assessments and AYP 15 determinations so that schools are held accountable for the progress of these students. The 16 United States contends that the determination of whether a school makes AYP, based on the 17 assessment of all students, and the consequences that follow from a school’s failure to do so, 18 are the essential elements of the accountability mechanism that Congress has established. 19 Thus, to the extent that ADE’s proposed amendment would have allowed LEP students’ test 20 scores to be omitted from AYP determinations as “error” during their first three years in 21 United States schools, it was properly rejected by the Secretary of Education based on the 22 plain language of the statute. 23 Should the Court determine that 20 U.S.C. § 6316(b)(2)(B) is ambiguous, the United 24 States next contends that the Secretary’s interpretation should be upheld as reasonable under 25 Chevron step two. See Norfolk Redev. & Hous. Auth. v. Chesapeake & Potomac Tel. Co., 26 464 U.S. 30, 36 (1983) (noting that statutes must be interpreted “in light of the purposes 27 Congress 28 (2001)(courts should avoid any interpretation that would “conflict with the intent embodied sought to serve”); Chickasaw Nation v. United States, 534 U.S. 84, 85 -8- 1 in the statute Congress wrote”). Under the second step of the Chevron analysis, the United 2 States claims that its denial of ADE’s proposed plan amendment cannot be characterized as 3 arbitrary, capricious, or manifestly contrary to the statute, since the Secretary’s decision 4 conformed with the broader goals and policies of the statute. As previously stated, Element 5 9.2 of Arizona’s proposed plan amendment allowed “as grounds for appeal of an Arizona 6 school's AYP determination, evidence that the school's failure to make AYP is due to the 7 inclusion of the non-proficient scores of limited English proficient (LEP) students who are 8 in the first three years of enrollment in a school in the United States.” The United States 9 argues that permitting this exception would have been inconsistent with Congress’s goal of 10 requiring accountability for the progress of all students, including members of the LEP 11 student subgroup. According to the United States, Congress’ expressly sought to identify 12 LEP students as a group that must be included in AYP determinations both as a separate 13 subgroup and within the “all students” group, which evinced a particular concern with 14 ensuring that a state be held accountable for the academic progress of this population in order 15 to prevent LEP students from slipping through the cracks. According to the United States, 16 because Arizona’s proposed plan amendment was contrary to these Congressional aims, the 17 Secretary’s decision was not improper, and at a minimum should be entitled to Chevron 18 deference by the district court. 19 The State of Arizona responded to the United States’ position by arguing that the 20 Secretary’s decision to reject its proposed plan amendment is not entitled to deference and 21 should be stricken. While the State of Arizona acknowledges that courts as well as agencies 22 must give effect to the unambiguously expressed intent of Congress, Chevron, 467 U.S. at 23 842-43, ADE disagrees with the federal government as to what the actual expressed intent 24 of the statutes at issue is. § 6316(b)(2)(B) states that a school may appeal its AYP label for 25 statistical or substantive reasons. According to ADE, under the plain language of the statute, 26 based on the school’s request, the “local educational agency” submits an appeal to the state, 27 which makes the final determination based on the evidence presented. ADE argues that it was 28 Congress’ specific intent for the state and local districts to decide what reasons would be -9- 1 sufficient for granting an appeal, not the Secretary of the USDE. ADE claims that by 2 rejecting its proposed plan amendment, the Secretary has substituted his judgment for that 3 of the states and concluded that ADE violated the accountability requirements of the statute 4 without allowing it to provide any facts or evidence to support its assertion that granting 5 appeals does not violate accountability requirements for LEP students. Furthermore, 6 according ADE, the Secretary has prejudged Arizona’s compliance in an area where the 7 statutory language gives states discretion to determine appeals for substantive educational 8 issues. 9 The State also argues that NCLB’s other statutory provisions support the concept of 10 showing deference to local choices in education policy. For example, one of the specific 11 means to accomplish the Act’s stated purpose is “providing greater decision making authority 12 and flexibility to schools and teachers in exchange for greater responsibility for student 13 performance.” See 20 U.S.C. § 6301(7) 14 With respect to Chevron step one, in determining whether the statutory language is 15 clear on its face, the Court notes that it is not sufficient to look only at the language of § 16 6316(b)(2)(B) without also looking at the overall manner in which that language is used 17 within the statutory scheme as a whole. In light of the overall statutory scheme of the ESEA, 18 it does not seem plausible that a participating state could determine that the participation of 19 LEP students during the first three years are “in error for statistical or other substantive 20 reasons” when other provision of the statute make clear that, despite the limited exemptions 21 provided for LEP students, states must still maintain the necessary accountability regarding 22 the academic progress of LEP students. Such accountability consists, among other things, of 23 complying with the specific provisions that require that all students, including LEP students, 24 be included in AYP determinations. See 20 U.S.C. § 6311(b)(2)(C)(i), (v)(I), (v)(II)(dd). 25 No degree of flexibility that otherwise exists in the statutory framework authorizes a state to 26 categorically exempt schools from these provisions whenever their failure to make AYP is 27 due to the inclusion of LEP students in their first three years in United States schools. To the 28 extent Arizona is unique due to its large LEP student population, as ADE points out in its - 10 - 1 briefing, that fact only serves to underscore the importance of ensuring state accountability 2 for the progress of these students. 3 While the appeals provision under 20 U.S.C. § 6316(b)(2)(B) does provide a certain 4 amount of flexibility where a school principal or a majority of parents believe that a proposed 5 identification of a school “is in error for statistical or other substantive reasons,” those 6 situations are clearly distinguishable to the categorical exemption that ADE's plan 7 amendment sought to establish. For example, as the United States explained during oral 8 argument, under § 6316(b)(2)(B) a state may allow a school to appeal its failure to make 9 AYP if such failure is based on the inclusion of a student who has suffered a significant 10 medical emergency that prevented the student from attending school and participating in the 11 assessment. 12 As such, because the statutory language is plain on its face, and because the 13 Secretary’s decision to reject the State of Arizona’s proposed plan amendment comports with 14 the clear intent of Congress, the Secretary’s decision is entitled to deference under step one 15 of the Chevron doctrine. 16 However, in the alternative, even if the Court were required to proceed to Chevron 17 step two, the Court finds that the Secretary’s decision to deny Arizona’s proposed plan 18 amendment as being irreconcilable with the broad policy goals of ESEA was reasonable, and 19 was not arbitrary, capricious, or manifestly contrary to the statute. Accordingly, the 20 Secretary’s decision is also entitled to deference under Chevron step two. 21 With respect to Chevron step two, in arguing that the Secretary’s decision was 22 arbitrary and in excess of statutory authority, ADE appears to focus on the flexibility that the 23 statute grants to each state to appeal its failure to make AYP to the school district when the 24 school principal or parents attribute that failure to “error for statistical or other substantive 25 reasons.” However, no part of the statutory scheme permits a participating state to override 26 the express accountability requirements that are the linchpin of the ESEA. Although ADE 27 has argued that its proposed plan amendment—in which ADE would not include LEP 28 students as part of AYP calculations but would track and monitor LEP student progress using - 11 - 1 alternative mechanisms—comports with Congressional objectives, what the State fails to 2 recognize is that the accountability mechanisms of the ESEA and NCLB are not just general 3 in nature; instead, the statute sets forth very specific ways in which a participating state must 4 be held accountable for student achievement. The first requirement is that all students are 5 subject to objective testing. 6 Connecticut v. Spellings (“Conn. I”), 453 F. Supp. 2d 459, 470 (D. Conn. 2006). The second 7 requirement is that all students, which would necessarily include LEP students, have their 8 test scores included in a school’s AYP calculations. 20 U.S.C. § 6311(b)(2)(I)(i); 34 C.F.R. 9 § 200.20(a), (c). It should be noted that there is no exception that would permit a 10 participating state such as the State of Arizona to broadly exempt all LEP students from 11 assessment or reporting. In fact, the ESEA specifically directs that LEP students are to “be 12 assessed in a valid and reliable manner and provided reasonable accommodations on 13 assessments . . . including, to the extent practicable, assessments in the language and form 14 most likely to yield accurate data on what such students know and can do in academic 15 content areas, until such students have achieved English language proficiency.” 20 U.S.C. 16 § 6311(b)(3)(C)(ix)(III). 17 permitting a state to exempt “recently arrived LEP students” from reading/language arts 18 assessment and not to count the scores of such students on the mathematics assessment or the 19 reading/language arts assessment (if they take it) in AYP determinations for one year, 34 20 C.F.R. §§ 200.6(b)(4), 200.20(f)(1)(ii), these one-time exemptions are limited to a small 21 subset of LEP students –those who have attended schools in the United States for less than 22 twelve months. Congress seemingly determined that this two-part method of accountability 23 was the most practical way in which to make our nation’s schools academically accountable 24 to the federal government for federal funds. A state cannot come forward with a plan 25 amendment that would more or less eliminate both of those requirements with respect to its 26 LEP student population without blatantly running afoul of Congress’ goals in passing the 27 legislation. 20 U.S.C. § 6311(b)(3)(C)(ix)(I); 34 C.F.R. § 200.6; Furthermore, although the Secretary has issued regulations 28 - 12 - 1 In addition, contrary to the State’s position, it is the Secretary, as head of the agency 2 charged with administering the relevant statute, who is authorized to make a final 3 determination regarding whether a state is in compliance with statutory requirements, as 4 indicated by the fact that ADE submitted its proposed plan amendment to the Secretary for 5 review. See 20 U.S.C. § 6311(f)(2); Conn. v. Spellings, 453 F. Supp. 2d 459, 469 (D. Conn. 6 2006) (“If a state’s plan does not comply with the requirements of the Act, the Secretary is 7 empowered to decline to approve it, and is further authorized to impose penalties on 8 non-compliant states.”). 9 Lastly, the ESEA only requires that each year LEP students are “assessed in a valid 10 and reliable manner and provided reasonable accommodations on assessments.” 20 U.S.C. 11 § 6311(b)(3)(C)(ix)(III); see also 34 C.F.R. § 200.6(b). To the extent ADE claims that the 12 test scores of its LEP students during their first three years in state public schools should 13 qualify for a blanket exclusion as “error for statistical or other substantive reasons” merely 14 because those scores are unreliable in light of Proposition 203, the rejection of that 15 contention by the Secretary was not arbitrary, capricious, or manifestly contrary to the 16 statute. It is not altogether clear how Proposition 203, which has been codified at A.R.S.. § 17 15-755, effects any of ADE’s obligations under ESEA and NCLB. The plain language of 18 § 15-755 simply requires the Arizona schools to administer a test in English once a year. See 19 A.R.S.. § 15-755 (“a standardized, nationally-normed written test of academic subject matter 20 given in English shall be administered at least once each year to all Arizona public 21 schoolchildren in grades two through twelve”). The statute does not appear to preclude ADE 22 from conducting additional testing for LEP students in their native languages, as permitted 23 under 20 U.S.C. § 6311(b)(3)(C)(ix)(III), or by providing reasonable accommodation to LEP 24 students unitizing other less obvious means. As both Parties recognized during oral 25 argument, the ESEA provides a great deal of flexibility for states to provide reasonable 26 accommodation to LEP students in a manner that is most sensible for each individual state. 27 Therefore, as an alternative argument, the Secretary’s decision to deny the State of 28 Arizona’s proposed plan amendment, including the inclusion of Element 9.2, is also entitled - 13 - 1 to deference from this Court under Chevron step two, since the decision was not arbitrary, 2 capricious, or manifestly contrary to the ESEA and NCLB. 3 IV. CONCLUSION 4 There is no question that the State of Arizona is in a difficult position vis a vis its large 5 LEP student base, especially in these difficult economic times. However, the Court's role 6 here is quite limited. The only issue presented in this case is whether the United States 7 Secretary of Education’s decision to reject Arizona’s proposed plan amendment survives 8 judicial scrutiny under the deferential Chevron standard. After a careful review of the State’s 9 proposal to categorically exempt the test scores of its LEP students from AYP calculations, 10 the Court cannot permit the Arizona to override the most basic requirements of the No Child 11 Left Behind Act through its proposed plan amendment. As such, Arizona’s administrative 12 challenge to the U.S. Department of Education’s decision fails. 13 Accordingly, 14 IT IS HEREBY ORDERED granting Defendants’ Renewed Motion to Dismiss, 15 (Dkt.#23). 16 IT IS FURTHER ORDERED directing the clerk to enter judgment accordingly. 17 DATED this 21st day of December, 2009. 18 19 20 21 22 23 24 25 26 27 28 - 14 -
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