Skip Office Navigation
OCR: Office for Civil Rights!
   Current Section
Compliance Resolution
Arizona Depatment of Education

U.S. Department of Justice
Civil Rights Division 

U.S. Department of Education
Office for Civil Rights

May 24, 2011

Via Facsimile and United States Mail

Mr. John Huppenthal
Superintendent of Public Instruction
Arizona Department of Education
1535 West Jefferson Street
Phoenix, Arizona  85007

Ms. Jennifer Pollock
Education Unit Chief Counsel
Arizona Office of the Attorney General
1275 West Washington Street
Phoenix, Arizona  85007-2926

RE: Arizona Department of Education
OCR Case Number 08-09-4026

Dear Superintendent Huppenthal and Ms. Pollock:

We appreciate that the Arizona Department of Education (ADE) has voluntarily resolved the above-referenced matter by entering into a Resolution Agreement (Agreement) on March 25, 2010 with the Office for Civil Rights of the U.S. Department of Education (OCR) and the Civil Rights Division of the U.S. Department of Justice (DOJ), a signed copy of which is enclosed.   Now that all parties have worked together to resolve the complaint and consistent with what is required under the procedures set forth in OCR’s Case Processing Manual (CPM),1 we are sending you this letter to document our findings in this matter.

As you are aware, OCR and the DOJ investigated two complaints that were consolidated under OCR Case Number 08-09-4026 (complaint).  The complainants alleged that due to ADE’s mandated change of the Home Language Survey (HLS) to a single question (“What is the primary language of the student?”), students who are English language learners (ELLs) and eligible to receive English language acquisition services were not being served because they were not being identified. 

We determined that ADE’s one-question HLS, even when supplemented by the teacher referral process, did not comply with Title VI of the Civil Rights Act of 1964 (Title VI) and the Equal Educational Opportunities Act of 1974 (EEOA).  OCR and DOJ found that the one-question HLS did not adequately identify and serve ELL students who needed English language development services and unnecessarily delayed their identification and receipt of services.  We recognize that ADE rejects our legal conclusion and denies the allegations set forth in the complaint.  As specifically required by OCR’s CPM, the reasons for our conclusion are set forth below 

I. Legal Authority

OCR and DOJ are both responsible for enforcing Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, and its implementing regulation, 34 C.F.R. part 100.  Under the statute and regulation, recipients of federal financial assistance are prohibited from discriminating on the basis of race, color, or national origin.  ADE is a recipient of financial assistance from the U.S. Department of Education and, therefore, is subject to Title VI and its implementing regulation.  Additionally, local educational agencies (LEAs) in Arizona that receive federal financial assistance are also required to comply with Title VI.  DOJ is further authorized to enforce the EEOA, which requires that state educational agencies and LEAs take appropriate action to overcome language barriers that impede equal participation by students in the instructional program.  20 U.S.C. § 1703(f).

OCR’s May 25, 1970 Memorandum interpreting Title VI states that “Where inability to speak and understand the English language excludes national origin minority-group children from effective participation in the educational program offered by a school district, the district must take affirmative steps to rectify the language deficiencies of LEP students in order to open the school district’s instructional program to such students.”  The Department of Health Education and Welfare’s May 25, 1970 Mem., “Identification of Discrimination and Denial of Services on the Basis of National Origin,” 35 Fed. Reg. 11,595 (July 18, 1970).  This interpretation was upheld by the U.S. Supreme Court in Lau v. Nichols,  414 U.S. 563 (1974).  OCR’s longstanding Title VI policy states that school districts must identify ELL students, and if ELL students in need of an ELL program are not being served, the recipient is in violation of Title VI.  See OCR’s Dec. 1985 Mem., “Policy Regarding the Treatment of National Origin Minority Students Who Are Limited English Proficient”; OCR’s Sept. 27, 1991 “Policy Update on Schools’ Obligations Toward National Origin Minority Students with Limited-English Proficiency.”  The EEOA similarly requires that all eligible ELL students be identified and served in a timely and appropriate manner.

II. Background

Under Title VI, LEAs could assess everyone or screen students through a different mechanism provided it ensures the timely identification of all ELLs. As with school districts in most states, Arizona LEAs identify ELL students through a two-step process.  First, ADE requires LEAs to rely on the HLS as their primary screening mechanism.  Parents of students enrolling in LEAs for the first time are asked to complete a HLS designed to identify all students with a primary home language other than English (PHLOTE ).  Second, these students are then assessed to determine whether their proficiency in English is, in fact, limited.

Arizona law delegated authority to the State Superintendent of Education to determine how to identify a student’s PHLOTE status.  Prior to School Year (SY) 2009-2010, Arizona required LEAs to ask three questions on the HLS:

What is the primary language used in the home regardless of the language spoken by the student?

What is the language most often spoken by the student?

What is the language that the student first acquired?

In a March 19, 2009 memorandum to LEAs, ADE mandated that, effective July 1, 2009, the HLS be changed from a three-question survey to a one-question survey that asks only, “What is the primary language of the student?”  ADE further directed LEAs to guide parents to answer with the “language used most often by the student.”2  Beginning with SY 2009-10, if a parent or guardian answered this question by indicating a language other than English, the student would be “assessed to determine eligibility for participation in an ELL program,”3 or, in other words, assessed for ELL status by being given the Arizona English Language Learner Assessment (AZELLA).

In August 2009, ADE supplemented this mandate in two ways.  First, on August 14, 2009, ADE issued a “Clarification/2009 Primary Home Language Other than English (PHLOTE) Form,” which provides:

[Regarding] the identification of continuing ELLs who arrive as new students at a new school, it is the responsibility of the school to check on the eligibility of these new students for any ELL services provided at their previous school.  This will ensure that all eligible students will be given the opportunity to receive ongoing ELL services.

On August 26, 2009, ADE issued a memorandum to Superintendents, Principals, and ELL Coordinators, along with an updated Arizona Department of Education Guidelines & Procedures No. EX-48 “Process for Administration of AZELLA (Arizona English Language Learners Assessment) by Home Language Survey or Mainstream Classroom Teacher” (hereafter Ex. 48).  In the August 26th updated Guidelines, ADE clarified that a mainstream classroom teacher may initiate the process for the administration of the AZELLA by requesting a parent/guardian conference for potential ELL students who are not identified by the one-question HLS for testing.  See Ex. 48.  At the conference, the teacher “must present evidence” of his or her bases for initiating the conference that may result in the administration of the AZELLA to the student.  Id.

ADE’s Guidelines state that “the following are required criteria [for teachers] in determining the need for an AZELLA administration:

The student exhibits that his or her primary language is other than English.
The student does not respond to everyday language, questions, or commands given in English.
The student does not complete written assignments given in English.”

Id. (emphasis added).  The Guidance then states: “Upon determination at the parent/guardian conference of the need for administration of the AZELLA instrument, (based on any of the above-listed criteria), and with written permission from the parent/guardian, the student in the mainstream classroom will be administered the AZELLA instrument.”  Id. (emphasis added).  The form for teacher and parent referrals for testing states “check all that apply” with respect to the three required criteria. Id.

ADE prohibited LEAs from using any other process to identify PHLOTE students for testing other than the one-question HLS and the teacher referral process.  While LEAs could develop a separate form to collect additional information, ADE prohibited them from using information collected on that form “in the eligibility determination process of assessing a student for English language proficiency.” (Letter from ADE to OCR of Aug. 31, 2009, Ex. 1, Instructions for Administering the Primary Home Language Other than English (PHLOTE) Home Language Survey.)

III. Summary of Findings

During our investigation of whether ADE’s identification procedures implemented in SY 2009-10 violated Title VI and the EEOA, OCR and DOJ reviewed and considered information provided by the complainants and ADE.   We also requested information from a sampling of 20 large Arizona LEAs, 18 of which responded to our inquiry, about their experiences implementing the new HLS and teacher referral process.  We also received related information from eight additional LEAs, both large and small, where OCR is currently monitoring separate compliance agreements based on Title VI legal requirements.

We looked at data regarding how many PHLOTE and ELL students were identified before and after the changes to the HLS.  Identified PHLOTE students are tested through the AZELLA to determine ELL status. However, if they are never identified as PHLOTE through the HLS or teacher referral process, they never receive ELL testing.  Subsequent to ADE’s mandate that LEAs use the single-question HLS, most of the LEAs reported a sharp decline in the number of PHLOTE students identified by the HLS.  ADE’s data show that the number of students assessed with the AZELLA in SY 2008-09, (which includes PHLOTE students, ELL students, and former ELL students in monitoring year one and two), declined substantially compared with SY 2009-10, from 250,092 to 136,245 - a decline of 113,847 students assessed.  We further examined ADE’s data and determined that the number of PHLOTE students tested with the AZELLA has similarly declined; the same drop is reflected in data supplied by LEAs.  Overall, ADE’s ELL program counts show a decline of 33,382 students between SY 2008-09, when the three-question HLS was in place, and SY 2009-10, when the one-question HLS was in place.

ADE’s data regarding the number of PHLOTE and Initially Fluent English Proficient (IFEP) students (those who were assessed for the first time and scored proficient on the AZELLA) show that the number of newly identified ELL students decreased substantially across Arizona.

School Year


Number of Initial Fluent English Proficient (IFEP) Students

New ELLs

% of New PHLOTES Who Were Tested and Identified as IFEP











Overall, the number of newly identified ELL students decreased by more than 10,000 after the HLS changed, but the percentage of new PHLOTE students tested who were identified as IFEP remained roughly the same. 

We also considered ADE’s guidance materials regarding the teacher referral process and talked to LEAs about their experiences implementing this process.   Seven LEAs reported that parents were confused by how to answer the question regarding what is the “primary language” of the student and that they had difficulty getting reliable information from some parents due to the vagueness of the one HLS question and the discrepancy of staff members’ interpretation of the one question.  Some LEAs reported that the teacher referral process had not been an effective means to identify the ELL students missed by the one-question HLS for reasons that include, but are not limited to:  the restrictive criteria required of mainstream teachers to complete the referral process; the restrictions in meaningfully identifying American Indian students requiring ELL services; the reluctance of teachers and parents to use a process that likely would result in a mid-year change in placement by the time the conference takes place and test scores are available; and the fact that, even when the process is used to refer students for testing, it often results in a substantial delay before students are identified as ELL students.  LEAs further reported that educators believed that students must meet all three criteria to qualify for the teacher referral process; consequently, students who did not meet all of the criteria were not referred even though the educators believed they were ELL students.  Teachers also expressed concern about the restrictions ADE placed on their ability to exercise sound educational judgment when determining which students should be referred for AZELLA testing.  

We examined data regarding the number of referrals, the timeliness of referrals, and their impact on individual students’ educational progress.  When ADE conducted a survey of 235 districts and charter schools regarding how many students had teacher referrals, 130 responded and reported a total of 96 students. We received evidence from 26 LEAs showing that only 20 ELL students missed by the one-question HLS were identified by the teacher referral process and that most identified through this process and tested to determine ELL status were identified as ELL only after considerable and unnecessary delay (one month to eight months).  According to the LEAs, these students could have been identified sooner had ADE not prohibited identification methods outside of the one-question HLS and teacher referral process. 

IV. Analysis

Title VI and the EEOA require that states and LEAs have procedures in place for identifying ELL students and providing such students with appropriate ELL services;  states and LEAs may not leave eligible children unserved.

We reviewed carefully ADE’s reasons for revising its HLS and sought to determine the effectiveness of the revised HLS and teacher referral process in identifying those students who may require English language development services.  As noted above, the number of PHLOTE students decreased across the State of Arizona, and LEAs that kept track of how many students would have been identified in SY 2009-10 based on data collected from preceding years found that many fewer students were identified.  Further, the number of new ELL students decreased substantially across the state and in the LEAs surveyed.  Evidence from LEAs showed that parents and schools were confused about the vagueness of the one question and the policy change effectively negated the impact of other languages spoken in the home.  After analyzing the student data and the extensive evidence provided by the LEAs, we determined that ELL students who needed services were not being identified.  Moreover, where potential ELL students were identified through the teacher referral process, their ELL services were unnecessarily delayed. 

V. Conclusion

Because we determined that eligible ELLs were not receiving English language acquisition services or were not receiving them in a timely manner due to ADE’s one-question HLS and accompanying teacher referral process, we asked ADE to enter into a voluntary agreement to address this noncompliance with Title VI and the EEOA.  ADE acknowledged that OCR received the complaint regarding the HLS, but refuted the allegations and did not admit to any of OCR’s or DOJ’s findings of noncompliance.  However, ADE voluntarily agreed to resolve this matter through the attached Agreement, which, when fully implemented, will resolve the compliance concerns.  We will continue to monitor the implementation of all terms and conditions as specified in the Agreement to ensure compliance with applicable statutes and regulations.

This letter addresses only the issues listed above and should not be interpreted as a determination of ADE’s compliance or noncompliance with Title VI and its implementing regulation, and the EEOA, in any other respect.   This letter is a letter of finding(s) issued by OCR to address an individual OCR case.  Letters of findings contain fact-specific investigative findings and dispositions of individual cases.  Letters of findings are not formal statements of OCR policy and they should not be relied upon, cited, or construed as such.  OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public. 

Please also note the complainant may have the right to file a private suit in federal court whether or not OCR finds a violation.  Our regulations prohibit ADE from intimidating or harassing anyone who files a complaint with our offices or who takes part in an investigation.  Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request.  If we receive such a request, we will protect personal information to the extent provided by law.

Thank you for the courtesy and cooperation that you and your staff, particularly Ms. Adela Santa Cruz and Mr. John Stollar, extended to OCR during the investigation of this case.  If you have any questions regarding the disposition of this case, please contact Angela Martinez-Gonzalez at (303) 844-6083 or, and Emily McCarthy at (202) 305-3690 or


Thomas J. Hibino
Acting Director
U.S. Department of Education
OCR Denver Enforcement Office

Emily McCarthy
Deputy Chief
U.S. Department of Justice
Civil Rights Division
Educational Opportunities Section


Enclosure:  Resolution Agreement

1 Upon resolution of a complaint, OCR’s CPM requires the issuance of a letter of findings.
2 State of Education 2009 Report, Superintendent Tom Horne.  Arizona Department of Education Memorandum, Primary Home Language Other Than English (PHLOTE) Identification for the 2009-2010 School Year (March 12, 2009).  See also Primary Home Language Other Than English (PHLOTE) Home Language Survey (Effective July 1, 2009) form.
3 Arizona Department of Education Memorandum, Primary Home Language Other Than English (PHLOTE) Identification for the 2009-2010 School Year, at 1 (March 12, 2009).

Last Modified: 01/15/2020