Appeals court upholds judge's order on ELL deadline for Arizona
Arizona Republic
Feb. 23, 2008

A federal appeals panel ruled Friday that English-language instruction law is so flawed that it "may well retard or reverse whatever progress has been" made in the instruction of more than 134,000 Arizona children who are struggling to learn English.

But the 9th U.S. Circuit Court of Appeals in San Francisco said two changes in the measure could bring Arizona's long-running dispute over English-language instruction to a conclusion.

"There is reason, then, to hope . . . that this dispute, which has been in the courts longer than it takes a student to go from kindergarten to college, may finally be nearing resolution," Judge Marsha S. Berzon, writing for the three-judge panel, concluded.

The court upheld a ruling by U.S. District Judge Raner Collins of Tucson, who determined that a law passed by the Arizona Legislature in 2006 failed to comply with a previous court ruling requiring improvements in instruction for English-language learners in the state's public schools. Most are children of immigrant parents who speak Spanish.

Collins has set a March 4 deadline for the state to come up with a workable plan or face potential fines of up to $1 million a day. Evidence so far this session suggests lawmakers have not made much progress toward that goal, although the deadline is less than two weeks away.

The 2006 law would spend an additional $14 million a year on English learners. Legislators face a deficit of more than $1 billion in the budgets for fiscal 2008 and 2009, and have balked at spending more money for English-learner programs.

Legislators have repeatedly said they believe their approach to English-education funding is correct, fair and equitable, and that the 2006 law took the necessary steps to solve the problem.

Some state officials have said they would appeal the case to the U.S. Supreme Court if necessary.

The court indicated Friday that changes in policy rather than more money would be the key to resolving the case.

Collins had ruled that the law didn't meet federal standards for providing equitable education opportunities. He 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.

The appellate panel agreed that the Legislature needs to change those two aspects of the law.

In the 91-page ruling, Berzon wrote that a solution is important in part because Arizona's English-learner students continue to lag behind statewide average test results.

"If anything, after 2000, when Arizona moved away from bilingual education and required most courses to be taught in English, regardless of students' language abilities, these challenges have become greater: A 10th-grader, for example, who speaks no English but must pass a biology course taught entirely in English will require considerable assistance," Berzon noted.

The court found that the state law, House Bill 2064, "does not sufficiently address the inadequacies of

Arizona's ELL funding system and, in fact, introduces new problems."

"In short, despite considerable efforts, and some improvements in outcomes, Arizona, as a state, does not appear to have turned the corner on ELL education," the ruling stated.

The case of Flores vs. Arizona, which originated in the Nogales Unified School District, has been continuing for 15 years.

The appellate panel heard arguments on the appeal of Collins' decision in December.

The panel concluded that state officials could resolve the case by abandoning the two-year funding cutoff and declining to consider federal funds in the grant-making process.