Up to $2 million a day sought for inaction on funding
Mary Jo Pitzl
The state should be fined up to $2 million a day for violating a federal
judge's order to fully fund programs for students struggling to learn
English, the children's lawyer said Friday.
Attorney Tim Hogan of the Arizona Center for Law in the Public Interest
filed his request with U.S. District Judge Raner Collins, saying similar
fines spurred the state Legislature to act last year even though the fines
were never collected and Hogan considered the action insufficient.
On Friday, he asked the court for a quick decision on his request for fines
that would start at $500,000 a day and escalate to $2 million.
The fines, if granted, will start whenever the judge's order is signed
Lawmakers ended their 2007 session without addressing Collins' order to
increase state funding for English-language learner programs. State
officials hope they can persuade the 9th U.S. Circuit Court of Appeals in
San Francisco to overturn the order.
At stake are millions of dollars of state money to pay for costs of
educating an estimated 133,000 students beyond the normal costs of teaching
English-proficient students. The money would bolster programs such as
English immersion, small-group instruction, extended day classes and summer
The case has ignited the passions of Republicans and Democrats alike. Some
say the state already spends enough money on English-learner students, most
of whom are U.S. citizens whose primary language is Spanish.
Others say the demands of a 21st-century economy call for whatever money it
takes to produce a workforce proficient in English.
The state Auditor General reported in April that state English-learner
funding rose from $23.9 million in 2002 to $46.9 million in 2003 before
dropping slightly to $46.4 million in 2007.
Collins has ruled that the funding remains below the level necessary to
satisfy a 2000 court order to adequately fund English-learner programs.
The fines assessed by Collins last year amounted to $21 million. Under
pressure from the court, lawmakers passed legislation they believed would
resolve the long-running court case of Flores vs. Arizona.
"They (the fines) produced something," Hogan said.
But a resolution to the case never happened. After Hogan successfully argued
to Collins that the legislative plan was inadequate, lawmakers and state
Superintendent of Schools Tom Horne appealed, and the legal arguments
Senate President Tim Bee said Friday that he had not yet had a chance to
talk with attorneys or with other legislative leaders.
But, he said, lawmakers want to press their case before the 9th Circuit,
arguing that their blueprint for English-learners does adequately meet
He rejected a suggestion, offered in Hogan's legal filing, that the state
could at least repeal some of the objectionable provisions of its
English-learner law, such as the requirement that federal funds must be
subtracted from the instructional budget before tallying the state's
"You wouldn't want to come back with a piecemeal solution, when the whole
thing is going to be up for review anyway," said Bee, R-Tucson.
The request to reinstate the fines did not stun state officials. Hogan had
said he would seek penalties after the Legislature finished its work last
"It certainly was no surprise," said Jeanine L'Ecuyer, a spokeswoman for
Gov. Janet Napolitano. As governor, Napolitano represents the state, the
original defendant when the Flores case was filed in 1992.
The $21 million in fines that accumulated last year was wiped out and
returned to the state's General Fund last summer, after the 9th Circuit
ruled in favor of lawmakers and Horne. The Appeals Court determined that
Collins should have held a full hearing on whether the state had met its
requirements under federal law, instead of imposing the fines.
That hearing was held earlier this year, and Collins again ruled that the
state's English-learner plan is inadequate. Lawmakers and Horne are
appealing that ruling.
The fines that Hogan proposed would start at $500,000 a day for the first 30
days, increasing to $1 million for the next 30 days, $1.5 million for the
following 30 days and then topping out at $2 million a day after 90 days.
About 13 percent of students in the state, most of them in kindergarten
through third grade, take part in English-learner programs.
Participation has been dropping in recent years, down by 17,600 from 2005 to
2006 and by 27,900 from 2004 to 2005, the auditor general reported.
The state Department of Education said the decline may be related to new
teaching strategies as well as a newly adopted statewide English-language
assessment test that began in 2005