By Howard Fischer

Tucson, Arizona | Published:  http://www.azstarnet.com/allheadlines/226659

 PHOENIX — The amount of money Arizona taxpayers have to spend to teach English will be decided by the U.S. Supreme Court.

The top Republican legislative leaders said Saturday that they want to take the legal dispute to the nation's high court rather than make two changes to the two-year-old law — changes the 9th U.S. Circuit Court of Appeals indicated a day earlier likely would make the law constitutional.

The legal costs of continuing the 16-year-old legal battle would be far less than what Arizona will have to spend in additional funds if the provisions are removed, said Senate Majority Leader Thayer Verschoor, R-Gilbert.

He noted there are figures that say altering the law the way the appellate court wants could cost the state $200 million a year — or more — even as Arizona grapples with a $1 billion deficit.

And Rep. Tom Boone, R-Peoria, his House counterpart, said he believes the judges are wrong in their conclusions that the state law is flawed.

All of that means the lawsuit, first filed in 1992, will not be resolved any time soon.

In deciding it is cheaper to continue the legal fight than comply, though, the legislators would be taking a different financial risk: A lower court judge said in December he would begin imposing fines of up to $1 million a day, beginning March 4, if the state does not have an acceptable plan in place. And nothing in Friday's appellate ruling disturbs that.

A federal judge ruled eight years ago Arizona is not complying with federal laws that require that all students have an opportunity to learn English. Prior legislative fixes all were rejected by the courts as inadequate.

The 2006 law directed the state Department of Education to set up procedures it determines are the best to teach English to students who come to school speaking another language. Those "models," which include a requirement for four hours a day of English immersion, were adopted last year.

School districts just recently submitted their applications for funding based on what they say is the additional cost of complying.

In Friday's ruling, the appellate judges seemed to suggest they would be willing to rule that law finally is meeting its legal obligations. But Judge Marsha Berzon, writing for the three-judge panel, said two changes are necessary.

First, she said, legislators would have to get rid of a provision that limits additional funding for the approximately 130,000 students classified as "English language learners" to only two years.

Berzon said there was "absolutely no evidence" presented to the court to show students who come to school speaking another language are proficient after two years.

"Instead the evidence is squarely to the contrary, as all witnesses testified that some students would certainly take longer than two years," she wrote.

Potentially more significant — and more costly for the state — the judges said lawmakers must strip a provision from the law that says schools must first use various federal funds before they can get extra cash from the state.

Berzon said that requirement violates several provision of federal law. And she said that could put the state and its school districts at risk of not only losing future federal funds but also having to repay prior grants, which would harm all students, both English learners and others.

The judge wrote that if the models are funded and the two changes are made, "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."

Boone, however, is not inclined to comply. He said there is nothing wrong with requiring schools which are already getting federal dollars for students not proficient in English to use those dollars first toward English instruction programs before tapping state taxpayers.

State Superintendent of Public Instruction Tom Horne, who has been defending the law in court, said he is still coming up with figures on how much more the state would have to pay if the federal dollars schools now receive cannot be considered in funding their English learner programs.

But Horne said removing that two-year cap would not be a big problem. Horne said he believes the new teaching models are so good that only a small number of students will still not be proficient after that time.

Boone said he might be willing to support some longer period. But he said the court "misunderstands" another provision in the law, which provides compensatory funds for students still having trouble after that time.

Berzon, however, said the state law restricts that compensatory funding to programs that cannot occur during classroom time. She said that illegally leaves the other costs of teaching these not-yet-proficient students unfunded.