English-learner case strains Arizona's coffers
Deadline creates dilemma for cash-strapped state
Mary Jo Pitzl
government, already strapped for money, could be staring down a bill for
millions of dollars for failing to fund a program to teach English to students
struggling to learn the language.
And the financial cost to the state will grow even more, as legislative leaders
and the state schools chief indicated Monday that they will appeal the
English-language issue all the way to the U.S. Supreme Court, if necessary.
The latest developments in the case of Flores vs. Arizona underscore the
financial and philosophical issues at stake.
On the one hand, lawmakers face a March 4 deadline to fund English-language
programs adequately. That's a deadline they said Monday that they can't meet.
That will send attorney Tim Hogan of the Arizona Center for Law in the Public
Interest back to a federal judge in Tucson to seek sanctions. Those penalties
could be similar, if not identical, to fines that were imposed on the state two
years ago for dragging its feet on the English-language issue: $500,000 a day,
climbing over time.
On another front, state officials will appeal Friday's ruling from a
three-member panel of the 9th U.S. Circuit Court of Appeals. The court rejected
their arguments that they have resolved the dilemma about English-language
instruction and thus should be removed from the requirements imposed by Judge
Raner Collins of U.S. District Court.
Tom Horne, state superintendent of public instruction, said he and legislative
leaders still are deciding whether to go directly to the U.S. Supreme Court or
seek a review from the full 9th Circuit.
The ruling was hailed by Hogan, as well as Gov. Janet Napolitano's office.
"This was a complete victory for Flores," said Hogan, who represents the
English learners in the class-action suit.
The original lawsuit was filed 15 1/2 years ago.
Napolitano, who has urged lawmakers to end the legal wrangling, said through an
aide that the court ruling has provided a way to do that.
"The court this time basically set up a road map," said Jeanine L'Ecuyer,
spokeswoman for the governor.
That's because the 9th Circuit noted that if two areas of the state law are
changed, it should satisfy equal-opportunity laws.
Horne said the
fight about unfavorable court rulings will continue because of the issue at
"To me, there's a very important principle involved," Horne said. "Do we live in
a representative republic, or are we being dictated to by a lifetime judiciary?"
Lawmakers long have complained that it is unjust for a federal judge to tell
Arizona how to structure its English-language programs.
Hogan has argued, though, that federal law requires equal opportunity for all
students in public school and that the state does not meet that standard when it
comes to students struggling to learn English.
Currently, those students number about 134,000.
Hogan said Monday that if lawmakers don't meet next Tuesday's funding deadline,
which they've known about since October, he'll go back to Judge Collins to seek
"I'm having trouble understanding why they can't meet the March 4 deadline," he
House Majority Leader Tom Boone said lawmakers can't make a proposal until they
receive a budget request from the state Department of Education. Without a cost
estimate based on a rational process, the Legislature would be guilty of an
arbitrary funding plan, something that Collins has rejected in the past.
That budget request should be ready by the end of the week or early next week,
Horne said. The much-anticipated budget figure will be based on forms filed by
school districts, Horne said, and it should total $30 million to $50 million.
Hogan is unmoved. If Horne can float an estimate, the Legislature can
appropriate at least the minimal amount, he said."I'm not averse to a very short
extension if they say they're going to fund the program," Hogan said of
Still, there is little indication that lawmakers are ready to carve out extra
money in the state budget for English-language instruction.
Big budget gap
leaders have been working to close an estimated $1.2 billion hole in the current
year's state budget and funding for English-language instruction has not emerged
as a priority.
"It doesn't seem it's on anyone's radar screen around here," said Rep. David
Lujan, D-Phoenix, who also is president of the Phoenix Union High School
"I think it's going to be up to Tim Hogan to go back to court."
Boone, however, said the Legislature is on track to deal properly with
English-language instruction: A study has been done of the costs, a task force
studied various instructional models, and now, the Department of Education is
compiling budget requests from the school districts.
"It's just that every little piece seems to be taking longer than people
thought," the Peoria Republican said.
In its ruling, the 9th Circuit lamented the time that the Flores case has
consumed, without a resolution, but the three-judge panel suggested that if
lawmakers addressed two issues, the state law could be read as complying with
the court's order.
Those issues include removing the two-year time limit that current state law
imposes on how long a student can stay in an English-learner program and not
counting federal dollars toward the state's cost of educating those students.
Senate Majority Leader Thayer Verschoor, R-Gilbert, said that if the Legislature
followed those recommendations, the law would be gutted because lawmakers don't
believe a federal judge should dictate education policy.
Besides, the court's guidance could be pricey.
"It would cost us an extreme amount of money," he said, estimating the tab at
"hundreds of millions of dollars."