Judges urged mediation
in English-language lawsuit
Mary Jo Pitzl
A panel of judges has told parties in a legal battle over English-language education to sit down with a mediator and settle differences rather than wait for another court ruling, but the prospect has some state officials balking.
The attempt at mediation to resolve the Flores vs. Arizona case follows a recommendation made at last week's hearing in San Francisco before the 9th U.S. Circuit Court of Appeals.
The judges issued an order after the hearing that directs their Circuit Mediation Unit to contact state and private officials and talk to them about using mediation to resolve the case. A report is due to the court by Dec. 20.
Although welcomed - with some conditions - by most of the parties, the idea isn't getting much traction with Gov. Janet Napolitano's office. Her office is involved in the case because the lawsuit is filed against the state of Arizona.
"We just don't think mediation is likely to be realistic," said Tim Nelson, the governor's attorney. "Even if you could get agreement from the current parties, it is unlikely that you would get agreement from the other 88 lawmakers."
House Speaker Jim Weiers and Senate President Tim Bee are two of the parties judges would like to see sit down to work out differences. These legislative leaders, though, can speak only for themselves, not for the entire 90-member Arizona Legislature.
Nonetheless, Weiers is willing to talk, even though his spokesman said he concedes the difficulty of getting 90 lawmakers, or even a majority, to agree on the same settlement.
"Some people may see this as fruitless," said Barrett Marson, spokesman for House Republicans.
But anything that would take the case out of the courts is worth exploring, he said.
The case revolves around whether Arizona is directing enough money and effort into giving non-native speakers instruction in the English language. A lawsuit filed 15 years ago alleged that the state fell short of the task and violates federal equal-opportunity laws for education.
State Superintendent of Public Instruction Tom Horne, who is a key defendant in the suit, said through a spokesman that although he is amendable to mediation, any decision about mediation is up to lawmakers because they control the money that is pivotal to the case.
Republican legislative leaders joined the case last year, complaining that the state was not mounting a vigorous defense against the suit.
Tim Hogan, the attorney who represents the schoolchildren affected by the state's policies, echoed what he told the justices last week in court.
"We're enthusiastic about talking about resolving the case," Hogan said.
Like the others, he acknowledged that it may be impossible to get legislative buy-in.