In the current english-only programs in California, Arizona, and Massachusetts only a small percentage of students are learning English and subject matter content. This violates the success in practice prong of . Further, these program failures bolster the claim that these programs also violate castañeda's sound theory and qualified expert support prong. Previous legal actions focused on the latter requirement and failed. Focusing on program failure creates a greater likelihood of successful legal challenge. This article calls for a change in interpretation of ELL rights and program requirements based on the majority consensus of best practices research.