Johnnie B. Rawlinson, a Circuit Court judge with the 9th U.S. Circuit Court of Appeals, asked if any of the parties had tried mediation.
"It seems like the state is feeding on itself," she observed, noting that state officials and lawmakers are at odds over how to meet federal equal-opportunity requirements for English instruction. The issue has been tied up in court for more than 15 years.
No, she was told, mediation is one consideration that hasn't been entertained in the long-running Flores vs. Arizona case.
"It seems to me if Israel and Palestine can agree to sit down, maybe you folks could, too," suggested Betty Binns Fletcher, a senior Circuit judge.
Attorney Tim Hogan, representing the estimated 140,000 Arizona students classified as "English-language learners," said he'd be amenable to mediation. He told the three-judge panel he wants to see the lawsuit resolved, and noted that he had made a settlement offer to lawmakers early this year. It was rejected.
But, Hogan said, there are philosophical, financial and political barriers to convening a mediation conference. The court did not specify what form the mediation would take.
Attorney Jose Cardenas, representing Gov. Janet Napolitano and the state Board of Education, said he imagined the governor would be open to mediation if there were a reasonable chance of success.
State officials are sorely divided over how to resolve the Flores case, even though technically, they are on the same side of the case because they're named as defendants.
Napolitano split from state Superintendent of Public Instruction Tom Horne's defense that the state had made great strides in educating students struggling to learn English and, therefore, the lawsuit should be dismissed. Instead, although she is a defendant, she hired her own attorney and effectively joined Hogan in arguing for further contributions from the state.
Meanwhile, legislative leaders hired their own attorneys and joined the lawsuit, adding their voices to Horne's defense.
Attorneys for those defendants on Tuesday had no immediate sense of whether mediation was a possibility.
Even if they did, there's the likelihood that legislative leaders couldn't guarantee a majority of lawmakers would follow them.
"What we need is a prompt ruling from this court," Cardenas said.
A question of funding
At issue before the court Tuesday was what constitutes adequate funding for
U.S. District Court Judge Raner Collins had ruled that a plan approved by lawmakers in 2006, and allowed to go into law without Napolitano's signature, didn't meet federal standards for providing equitable education opportunities. Collins specifically criticized two components of the state law: that students could only benefit from English-learner funds for two years, and that the state could use federal dollars earmarked for poor students to supplant the state's investment in English learning.
Attorney David Cantelme, representing Senate President Tim Bee and House Speaker Jim Weiers, told the court that Arizona education has come a long way since 2000, when a federal judge ruled that the state's plan to pay for such instruction was "arbitrary and capricious."
For example, the state adopted an English-immersion approach to language instruction, increased teacher pay and even changed the way it pays for school construction. And, perhaps most importantly, the Nogales Unified School District, home of the student whose lawsuit trigged this legal battle, has posted significant improvements in English mastery, Cantelme said.
The judges pressed him, however, to point to a dollar figure that represents adequate funding.
"No one has a complete, accurate estimate in the record," he said. And that's because success is judged by results, not by funding levels. The amount of money needed to bring students up to speed in language instruction will vary from district to district, given individual circumstances.
"The question is the opportunity (provided), it's not the dollars spent," Cantelme said.
Fletcher noted that the Legislature's plan calls for cutting off state dollars for English-language learners after two years.
But Cantelme said that wouldn't hamper students, since school districts could always tap into their maintenance-and-operations dollars to cover extra costs.
The Nogales model
Attorney Rick Bistrow, representing schools superintendent Horne, argued
that the No Child Left Behind federal program, with its requirements that
schools demonstrate progress in various subject areas, is proof that Arizona
schools such as the Nogales district are providing an equitable education.
Nogales met the federal standards, and, by implication, that indicates
students are getting enough funding to learn English and keep up with the No
Child Left Behind standards, Bistrow said.
Hogan argued that simply taking instruction money out of maintenance-and-operations budgets won't meet the federal standard of providing equitable education opportunities. He pressed his case that the state needs to put more money into a program that targets English-language learners, on top of the basic state aid that the Legislature allots per student.
Before Tuesday's arguments, House Speaker Weiers said he was confident the state would prevail, since he believed the facts show improvement in language instruction even without big infusions of money. But lawmakers are also readying themselves for a prolonged legal battle, lining up former special prosecutor Ken Starr to help argue their case before the U.S. Supreme Court, if it comes to that.
It is widely believed that whichever side loses Tuesday's arguments before the Appeals Court will try to convince the nation's highest court to take it on.
Starr's office confirmed that he had extended his help. Starr is now dean of the Pepperdine University School of Law, but is best known for investigating former President Clinton in a probe that ultimately led to an impeachment vote against the president. Starr also has served as U.S. solicitor general and served as a U.S. District Court judge.